Question 1

What are the risks of unrecorded instruments in Florida?

Accepted Answer

Risks: FL recording statute (Section 695.01): an unrecorded instrument is valid between the parties but void against: subsequent bona fide purchasers (who acquire the property for value and without notice of the unrecorded instrument), judgment creditors (who obtain a judgment lien against the property owner without knowledge of the unrecorded instrument), and mortgage lenders (who lend against the property without knowledge of the unrecorded instrument). Types of instruments: deeds, mortgages, easements, leases, and liens. The risk: increases over time as the probability of a third-party claim increases.

Question 2

How does Florida’s recording system protect against unrecorded instruments?

Accepted Answer

Protection: FL uses a "notice" recording system (the first to record generally prevails, but actual notice of the unrecorded instrument defeats a subsequent purchaser’s claim). The system: creates constructive notice (when an instrument is recorded: all subsequent buyers, lenders, and creditors are deemed to have knowledge of it). Title search: the title examiner searches the recorded instruments to identify the chain of title, liens, and encumbrances. Unrecorded instruments: do not appear in the search and are not reflected in the title commitment. Title insurance: protects the buyer against loss from unrecorded instruments (unless specifically excluded in the policy).

Question 3

What types of unrecorded instruments are most common in Florida?

Accepted Answer

Common: unrecorded deeds (transfers that were completed but never filed with the county), unrecorded mortgages (loans secured by real property that were not recorded: the lender’s lien is unperfected), unrecorded easements (access rights, utility easements, or other use rights that were agreed to but not recorded), unrecorded leases (long-term leases that were not recorded: in FL, leases longer than 1 year should be recorded; Section 689.01), and unrecorded liens (mechanic’s liens, HOA liens, or other claims that were not recorded within the statutory time). Each: creates risk for both the holder of the instrument and subsequent purchasers.

Unrecorded Instrument Risk

Unrecorded Instrument Risks in Florida

Risk

FL System

Common Types

Related Terms

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