What are Recording Instruments?
A recording instrument is any legal document that is recorded in the public land record system to convey the title of real property or show secured interest or release an interest in a property.
Examples of Real Estate Recording Instruments
- Mortgage assignments
- Mortgage satisfactions
- Notice of commencement
- Lien releases
- Other contracts
Why Do Real Estate Documents Need to Be Recorded?
The public land record system serves as a single source of truth in regards to who holds title or security interest in a property. Once an instrument has been recorded, the law asserts that others know of an individual’s claim, whether they search the public record or not.
The recorded documents provide an important paper trail to establish a chain of title. With this, title agents and others who know how to follow the trail can trace a property back to the original owner.
A recorded instrument doesn’t necessarily indicate who owns a property, but it helps to clarify which party has a valid claim to a property when disputes arise. To settle property disputes, each instrument serves as a piece of a puzzle. The full picture isn’t obvious until all recorded instruments are reviewed for authenticity and an ownership timeline is established.
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How Are Instruments Recorded?
There are thousands of recording jurisdictions, often referred to as the Recorder of Deeds or Clerk of the Courts, across the country.
A recording jurisdiction may encompass a county, a city, or other governing jurisdiction. Each recording jurisdiction’s requirements for submission may vary slightly, but general guidelines are usually established by the state to determine the process by which an individual makes a claim on a property known.
While the instrument may be executed in any location, it’s required to be recorded under the rules of that property’s jurisdiction. If you’re submitting an instrument for recording, you’ll want to:
- Confirm the recording jurisdiction of a property.
- Follow that recording jurisdiction’s specific instructions.
It’s important to note that the recorder isn’t responsible for determining the validity of a recording instrument. In fact, state laws often limit the recorder’s ability to refuse a possible fraudulent instrument. Instead, instruments may only be rejected if they don’t meet the recording jurisdiction’s submission requirements.
Submitting an Instrument for Recording
In a typical real estate transaction, the instruments will be submitted by your real estate attorney, title company, or a third party with access to the appropriate records to draft the needed instrument. The associated recording fees charged by the recording jurisdiction are part of the closing costs.
However, if you have to submit an instrument, here are the steps you’ll likely need to take.
General Steps to Submitting a Recording Instrument:
- Confirm the property is located within the recording jurisdiction.
- Ensure the document is properly signed and notarized (if the instrument includes a notarial certificate) and meets all state recording requirements.
- Provide the original wet signed instrument or RON signed if accepted (no photocopies).
- Ensure the instrument has the appropriate margins and spaces required for the recorder’s office use.
- Provide a self-addressed stamped envelope or return shipping label, so the original can be returned to you.
- Confirm the property information is accurate.
- Review special instructions for specific instruments like deeds.
- Verify the spelling of names and the mailing address of the grantee.
- Include the correct recording fees, documentary stamps, and transfer or mortgage tax if applicable.
- Submit the documents in person, USPS, FedEx/UPS, or by an electronic recording service if available.
Be sure to reference your recording jurisdiction’s specific instructions for more details.
Today, many recording jurisdictions allow recording instruments to be submitted electronically. There are 2,367 counties in the Simplifile network, representing more than 80% of the U.S. population. This electronic recording or eRecording provides a secure online method for submitting deeds, liens, and other documents and eliminates the need to mail or deliver documents in person.
How Long Does it Take for an Instrument to Appear in the Public Record?
Whether submitting an instrument by mail, in-person, or electronically, it may take anywhere from a few hours or even months for it to appear in the public record. Factors like how often the recording jurisdiction updates online records, staffing shortages, and tech enablement all affect the timeline of recording.
Submission doesn’t mean instantaneous recording, even though most counties will carry the date and time it was submitted to show as the date of recording on the document.
Certain instruments like a lien release or mortgage satisfaction may take longer depending on who needs to draft the document and confirm that the debt has been resolved at closing. State provisions and federal laws like the Uniform Residential Mortgage Satisfaction Act (URSM) require creditors,typically a lending institution, to submit and record these instruments within 30-90 days.
What Happens if an Instrument isn’t Recorded?
If a recording instrument like a deed, mortgage satisfaction, or lien release isn’t recorded, it may create a title defect. Each defect presents a challenge for the property owner if it goes unresolved.
Without a recorded deed, you are not recognized as the legal owner of the property. Without a recorded release or satisfaction of a lien, your property remains encumbered by the lien even if it was paid off.
If you use a title company or real estate attorney during a real estate transaction, they will ensure instruments listed in the title commitment like the deed and any lien releases are properly recorded after the closing.
However, most jurisdictions offer online records for you to search at any time. If you notice that these documents don’t appear in the public record after 90 days, reach out to your title agent or attorney for guidance. They will help you resolve the issue before it becomes a bigger title issue that can delay a future real estate closing.