Recording First, but Not Home Free: A Quitclaim and a Cousin's Deed
Your buyer, Priya Raman, is under contract on 12 acres in Craftsbury for $240,000. The seller, who is 84, is conveying by quitclaim deed prepared by his nephew. The deed describes the parcel only as "the old Harlow place, containing 12 acres, more or less," and refers to a 1978 survey that was never recorded. In 2019 the seller signed a warranty deed of the same parcel to his cousin, who never recorded it and never moved in. A neighbor has used a dirt track across the parcel for 20 years, and the track appears in no recorded document. Priya plans to record her deed the afternoon of closing and to start building next spring.
1. Priya believes that recording her deed first protects her against the cousin. Is she right?
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Not necessarily. Vermont's recording statute protects a purchaser without notice, not merely the first to record.
- Under 27 V.S.A. § 342, an unrecorded conveyance is void only as against a subsequent purchaser for value who takes without notice. It is a notice statute, not a pure race statute; recording first does not cure notice that the buyer already had.
- Notice comes in three forms: actual (she is told), record (a document in the chain or a related index entry), and inquiry (facts that would lead a reasonable buyer to ask questions). The cousin's possession or visible use of the land can itself be inquiry notice.
- So the analysis is: was the 2019 deed ever delivered? If it was delivered, the cousin holds an interest, and Priya takes subject to it if she had notice. If it was never delivered, no conveyance occurred and there is nothing to defeat.
- Practical steps before closing: obtain a full title search and a seller's affidavit addressing the 2019 deed and any prior conveyances; talk to the cousin; require the cousin to execute a quitclaim or release recorded at closing; and buy an owner's title policy with the issue expressly addressed rather than excepted.
2. What are the risks created by the quitclaim deed and the vague description, and how do you address them?
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Quitclaim gives her whatever the seller has - which may be nothing, and the description may not identify a buildable lot.
- Covenants: a quitclaim deed carries no warranty of title, no covenant against encumbrances, and no right to recover from the seller if a title defect appears. Priya's only protection is title insurance and the diligence done before closing. If she wants recourse, she needs a warranty deed, or a quitclaim plus an owner's policy and a seller's affidavit.
- Description: "12 acres, more or less," plus a reference to an unrecorded survey, is weak. A deed must describe the land so it can be identified and located. The fix is a boundary survey by a licensed Vermont surveyor and a recorded plat, with the legal description rewritten to match, plus the seller's signature on a corrective instrument.
- Before building, confirm the parcel is a lot of record and that any subdivision complied with local zoning and subdivision regulations; a 12-acre parcel created without approval can be unbuildable until the town acts.
- Flag all of this before the inspection and financing deadlines; corrective deeds take time.
3. The neighbor's 20-year track: what is it, and how does it affect Priya?
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Likely a prescriptive easement - invisible in the record and not extinguished by a clean title search.
- A prescriptive easement arises from use that is open, notorious, adverse (under a claim of right), continuous, and exclusive enough, for the statutory period - 15 years in Vermont. Twenty years of visible use of a defined track strongly fits.
- Because it is unrecorded, no title search will show it, and title insurance will almost certainly except it. Priya takes the land subject to it, and her quitclaim deed gives her no claim against the seller for failing to disclose it.
- Diligence: walk the parcel with the seller and the neighbor, photograph the track, ask what use has occurred and when, get a written affidavit from the seller about the neighbor's use and any permission given, and have the surveyor show the track on the plat.
- Resolution: a recorded easement agreement that fixes the location and defines maintenance, a boundary line agreement, or a quitclaim of the easement. Also check whether the track is the parcel's only practical access - that raises easement-by-necessity questions and a possible access permit issue.