Some issues raised by Alaska's Recording Act

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Date: Dec. 2010
From: Alaska Law Review(Vol. 27, Issue 2)
Publisher: Duke University, School of Law
Document Type: Article
Length: 11,936 words
Lexile Measure: 1860L

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ABSTRACT

This Article examines Alaska's Recording Act. It details how Alaska is a Race-Notice state and the implications of this compared to being a Notice state. The Article then describes how the Race-Notice recording act operates in practice. It then proceeds with a detailed account of the scope of title searches required under Alaska's recording act. It calls into question the Supreme Court's decision in Sabo v. Horvath and suggests a different outcome today. The Article asks whether the digitization of recorded instruments will cause the Alaska Supreme Court to expand the scope of the title search required under the Recording Act. Finally, this Article examines the potential applications of the Rule of Shelter in Alaska, allowing a transferee with notice of a prior grant of property to take free of that interest.

INTRODUCTION

This article examines some of the many issues raised by Alaska's Recording Act. The Supreme Court of Alaska has addressed very few of these issues, requiring some "educated guessing" as to what that tribunal's future decisions under the Recording Act will be. This Article takes a special look at Recording Act issues the court might address from a new perspective in light of the digitizing of most conveyance records, so that title searches now can be done online across the state through records dating back to 1971.

I. ALASKA'S FIRST RECORDING ACT

Every conveyance of real property within this State hereafter made, which shall not be recorded, as provided in this title, within five days thereafter, shall be void against any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance shall be first duly recorded. (1)

So read the law pursuant to which, with Juneau Deed Book 1, beginning October 21, 1884, (2) Alaska initiated the systematic recordation of conveyance instruments. It was an Oregon statute that came to Alaska via the Alaska Organic Act of 1884, by which Congress made applicable in Alaska the "general laws" of Oregon, not inconsistent with Alaska-specific federal legislation. (3) The final clause - "whose conveyance shall be first duly recorded"--made this a Race-Notice type recording act, rather than the other common type, a pure Notice act. (4)

Congress enacted verbatim this statute for Alaska in 1900. (5) The core language of the present Recording Act, section 40.17.080(b) of the Alaska Statutes, is essentially the same and retains the phrase "whose conveyance is first recorded."6 Alaska's method of indexing recorded conveyance documents has always been by use of grantor and grantee indices rather than by tract indices. (7)

II. HOW RACE-NOTICE AND NOTICE STATUTES OPERATE DIFFERENTLY

Alaska's Recording Act is addressed to the claimant under the first-in-time among two (or more) instruments by which conflicting claims to real property are being made and lays out what conditions must be proved for the first-in-time instrument to be void as against claims made under a subsequent-in-time competing instrument.

If all grantees were to promptly record, Notice and Race-Notice statutes would...

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Gale Document Number: GALE|A260138025