§6.5 - Instruments Entitled to Recordation

• Jurisdiction: Washington

§6.5 INSTRUMENTS ENTITLED TO RECORDATION

Recordable instruments fall into three general groups: (1) those by which a person who owns or has an interest in land (an owner) transfers title or some other interest in it; (2) those through which a third person asserts a claim against an "owner's" title or interest in land; and (3) instruments that do not directly affect title to or an interest in land but may nevertheless be placed of record. This sections will discuss these three groups of instruments in the order just listed.

(1) Instruments transferring an interest by "owner"

The recordability of instruments transferring an interest by an "owner" is determined principally by the 1927 recording act, RCW 65.08.060- .150, except for RCW 65.08.095 (deeds of the fee by public bodies), which was enacted in 1963 and provides that the grantor shall record at the expense of the grantee.

Although the statutes fixing the duties of the auditor require the auditor to record certain instruments, the recording act authorization is more inclusive in its definition of a "conveyance" that, by RCW 65.08.070, "may" be recorded, and requires the auditor to record "any instrument authorized or permitted to be so recorded by the laws of this state or by the laws of the United States." RCW 65.08.150. The term "conveyance" was defined by the original text of the 1927 recording act, now RCW 65.08.060(3), as follows:

The term "conveyance" includes every written instrument by which any estate or interest in real property is created, transferred, mortgaged or assigned or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument releasing in whole or in part, postponing or subordinating a mortgage or other lien; except a will, a lease for a term of not exceeding two years, and an instrument granting a power to convey real property as the agent or attorney for the owner of the property. "To convey" is to execute a "conveyance" as defined in this subdivision.

The usual instruments used in land transactions, other than the executory contract, are included in the quoted definition. What later became RCW 65.08.080 further provided that the executory contract might also be recorded. That section was repealed by Laws of 1984, ch. 73, which amended the definition of "conveyance" in RCW 65.08.060(3) by deleting the exclusion of "an executory contract for the sale or purchase of lands." Thereby, the executory contract was included within the definition of "conveyance" for the purposes of the 1927 recording act. Note also the inclusion of an instrument "by which the title to any real property may be affected." This language was held to authorize recording of an option to purchase as an instrument creating an interest in real property and affecting the title. Strong v. Clark, 56 Wn.2d 230, 352 P.2d 183 (1960).

To be a "conveyance," the instrument must have some operative effect. For example, an affidavit that the record owner had defrauded, or held in trust for, the affiant could hardly be a "conveyance," nor could an affidavit of identity, marital status, or heirship. That is not to say that some other statute may not authorize recording of such instruments, as is illustrated by the exclusion of the power of attorney from the definition, but inclusion of a power of attorney to convey real estate as recordable by RCW 65.04.030(1). The declaration by one spouse of the community property character of land titled only in the name of the other spouse similarly is recordable. RCW 26.16.100. Consider also the 1967 amendment of RCW 65.04.030, mentioned in §6.5(3).

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