The Unrecorded Deed and a Transfer Tax Bill
In 2015 Agnes signed a warranty deed conveying Blackacre to her son Ben. Ben never recorded the deed and never occupied the property. In 2018 Agnes - still the record owner - signed a warranty deed conveying Blackacre to Carol for $212,000. Carol had no actual or constructive notice of Ben's deed; she searched the record, saw nothing, and recorded her deed the same afternoon she closed. In 2019 Ben recorded his 2015 deed and demanded that Carol turn over the property. Ben has no written agreement with Agnes beyond the deed itself. Carol's county imposes a county transfer tax of $1.10 per $1,000 of consideration in addition to the state tax. Carol calls her broker asking whether she has to move out.
1. Who holds title to Blackacre, and why?
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Carol owns it. Michigan is a race-notice jurisdiction.
- Under the recording statute, a later purchaser who takes for value, without notice of a prior unrecorded conveyance, and who records first, prevails over the holder of that unrecorded interest.
- Carol satisfies every element: she paid $212,000, she had no actual, inquiry, or record notice of Ben's deed because it was never recorded, and she recorded before Ben did.
- Ben's 2015 deed was valid between Agnes and Ben - which means that as between those two, Agnes had already conveyed her interest. But an unrecorded deed is void as against the subsequent bona fide purchaser who records first; the recording act protects Carol's reliance on the record.
- Ben's remedy is not against Carol. It is against Agnes, for breach of the covenants in the warranty deed (seisin, right to convey, quiet enjoyment, warranty, and further assurances) and potentially for fraud.
2. Compute the total transfer tax Carol owes on the $212,000 deed and show the calculation.
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State $1,590.00 + county $233.20 = $1,823.20.
- State tax: $3.75 per $500 (or fraction) of consideration.
- $212,000 ÷ $500 = 424 increments
- 424 × $3.75 = $1,590.00
- County tax: $1.10 per $1,000 (or fraction) of consideration.
- $212,000 ÷ $1,000 = 212 increments
- 212 × $1.10 = $233.20
- Total: $1,823.20, paid at recording.
- The tax is computed on consideration, so a price that does not divide evenly into $500 or $1,000 increments is rounded up at each threshold - a $212,250 price would be taxed as 425 state increments and 213 county increments. A deed stating only nominal consideration or a gift may be taxed on the property's actual value, so the stated figure on the deed matters.
3. Ben's 2019 deed is now in the record. What should Carol do, and where does her owner's title insurance fit in?
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The recorded 2015 deed is a cloud on title that must be cleared, and the title insurer should be put on notice immediately.
- Carol's first step is a written demand that Ben execute and record a quitclaim deed or release of his interest. A demand letter from counsel is usually enough when Ben learns the recording act defeats him.
- If Ben refuses, Carol can bring a quiet title action to establish her ownership and clear the record; she cannot sell or refinance with an unresolved deed in her chain.
- Her owner's policy was issued on a record that did not show Ben's deed, so the claim falls within the policy's coverage rather than an exception. She must tender the claim to the insurer promptly - most policies require notice and give the insurer the right to defend or settle. Failing to notify can prejudice coverage.
- Carol should also preserve her right of action against the listing/selling side and the title company if the search missed something that a proper examination should have revealed, though here the unrecorded deed was genuinely absent from the record.