Our recording system, having its roots in England, is basically a system for determining priority of legal claims against real estate. Thus, when one acquires title to real estate, or mortgages property, those instruments affecting title are usually recorded in the county clerk’s office.
N.J.S.A. 46:21-1 entitled, “Recorded deeds or instruments as notice to subsequent judgment creditors, purchasers and mortgagees,” makes clear the purpose of our recording statutes. It states:
Except as otherwise provided herein, whenever any deed or instrument of the nature or description set forth in section 46:16-1 of this title, which shall have been or shall be duly acknowledged or proved and certified, shall have been or shall be duly recorded or lodged for record with the county recording officer of the county in which the real estate or other property affected thereby is situated or located such record shall, from time to time, be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution of the deed or instrument so recorded or of the contents thereof.
N.J.S.A. 46:16-1 sets forth a non-exclusive list of instruments entitled to be recorded. While, the recording of a document does not affect it’s validity as between the parties to the document, the consequences of not recording is set forth in N.J.S.A. 46:22-1:
Every deed or instrument of the nature or description set forth in section 46:16-1 of this title shall, until duly recorded or lodged for record in the office of the county recording officer in which the affected real estate or other property is situate, be void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed shall have been first duly recorded or whose mortgage shall have been first duly recorded or registered; but any such deed or instrument shall be valid and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees.
Thus, the principal purpose of New Jersey’s Recording Act is to protect subsequent judgment creditors, bona fide purchasers, and bona fide mortgagees against assertion of prior claims to land based upon unrecorded instruments.
This statutory scheme, is referred to as a “race-notice” system. A party who is a bona fide purchaser, mortgage holder, etc., for value and without any actual or constructive notice of adverse interests, is entitled to the protection of this statute.
The requirements for recording an instrument affecting title or an interest in real estate are not onerous; the instrument needs only to:
- be in English or accompanied by an English translation;
- bear a signature;
- be acknowledged or proved as required by statute;
- have the names appear typed, printed or stamped beneath the signatures of any parties to the instrument and the officer before whom it was acknowledged or proved;
- have the required recording fee paid;
- include the name and signature of its preparer on the first page and the tax block and lot number if the instrument is a deed conveying real property
If the instrument meets all the requirements for recording, the county recording officer will then copy it into the record and return the original document to the person submitting it for recording.
It becomes important to record all instruments affecting title to real estate to protect the recording party, as it will be generally presumed that all persons who deal with the property after that will do so with knowledge of the recorded instrument.
