2021 Colorado Code
Title 38 - Property - Real and Personal
Article 35 - Conveyancing and Recording
Part 1 - General Provisions
§ 38-35-109. Instrument May Be Recorded - Validity of Unrecorded Instruments - Liability for Fraudulent Documents

1. All deeds, powers of attorney, agreements, or other instruments in writing conveying, encumbering, or affecting the title to real property, certificates, and certified copies of orders, judgments, and decrees of courts of record may be recorded in the office of the county clerk and recorder of the county where such real property is situated; except that all instruments conveying the title of real property to the state or a political subdivision shall be recorded pursuant to section 38-35-109.5. No such unrecorded instrument or document shall be valid against any person with any kind of rights in or to such real property who first records and those holding rights under such person, except between the parties thereto and against those having notice thereof prior to acquisition of such rights. This is a race-notice recording statute. In all cases where by law an instrument may be filed in the office of a county clerk and recorder, the filing thereof in such office shall be equivalent to the recording thereof, and the recording thereof in the office of such county clerk and recorder shall be equivalent to the filing thereof. (1.5)
   1. Any person may record in the office of the county clerk and recorder of any county a master form mortgage or master form deed of trust. Such forms shall be entitled to recordation without any acknowledgment or signature; without identification of any specific real property; and without naming any specific mortgagor, mortgagee, trustor, beneficiary, or trustee. Every instrument shall contain on the face of the document “Master form recorded by (name of person causing instrument to be recorded).” The county clerk and recorder shall index such master forms in the grantee index under the name of the person causing it to be recorded.
   2. 1. Any of the provisions of such master form instrument may be incorporated by reference in any mortgage or deed of trust encumbering real estate situated within the state, if such reference in the mortgage or deed of trust states the following: (b) (I) Any of the provisions of such master form instrument may be incorporated by reference in any mortgage or deed of trust encumbering real estate situated within the state, if such reference in the mortgage or deed of trust states the following:
         1. That the master form instrument was recorded in the county in which the mortgage or deed of trust is offered for record;
         2. The date when recorded and the book and page or pages or reception or index number where such master form was recorded;
         3. That a copy of the provisions of the master form instrument was furnished to the person executing the mortgage or deed of trust; and
         4. If fewer than all of the provisions of the referenced master form are being adopted or incorporated, a statement identifying by paragraph, section, or other specification method which will clearly identify the incorporated provision or provisions, provided that in the absence of specific designation, the entire referenced master form will be deemed to be incorporated.

      2. The recording of any mortgage or deed of trust which has incorporated by reference any of the provisions of a master form recorded as provided in this section shall have the same effect as if such provisions of such master form had been set forth fully in the mortgage or deed of trust.

2. All deeds dated after January 1, 1977, and recorded with the county clerk and recorder pursuant to subsection (1) of this section shall include a notation of the legal address of the grantee of the instrument, including road or street address if applicable. Any such deed submitted to the county clerk and recorder lacking such address shall not be recorded and shall be returned to the person requesting the recordation. Acceptance of a deed by the county clerk and recorder in violation of this subsection (2) shall not make such deed invalid. A notation as required in this subsection (2) may be made by a person other than the grantee after the execution of the deed.
3. Any person who offers to have recorded or filed in the office of the county clerk and recorder any document purporting to convey, encumber, create a lien against, or otherwise affect the title to real property, knowing or having a reason to know that such document is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid, shall be liable to the owner of such real property for the sum of not less than one thousand dollars or for actual damages caused thereby, whichever is greater, together with reasonable attorney fees. Any grantee or other person purportedly benefited by a recorded document that purports to convey, encumber, create a lien against, or otherwise affect the title to real property and is forged or groundless, contains a material misstatement or false claim, or is otherwise invalid who willfully refuses to release such document of record upon request of the owner of the real property affected shall be liable to such owner for the damages and attorney fees provided for in this subsection (3).
4. Repealed.
5. 1. An affidavit, executed under penalty of perjury, stating facts enumerated under paragraph (b) of this subsection (5) and made by a person who has actual knowledge of, and is competent to testify in a court of competent jurisdiction about, the facts in such affidavit may affect the title to real property within the state and may be recorded in the office of the county clerk and recorder in the county in which the real property is situated.
   2. When recorded, an affidavit as described in subsection (5)(a) of this section, or a certified copy of such affidavit, shall constitute prima facie evidence of one or more of the following facts:
      1. The name, age, identity, residence, or service in the armed forces of any party;
      2. Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties within the chain of title;
      3. If furnished by a professional land surveyor as defined in section 12-120-302 (6), a surveyor's affidavit of correction in accordance with section 38-51-111 or a land survey plat in accordance with section 38-51-106, that reconciles conflicts and ambiguities in descriptions of land in recorded instruments;
      4. A scrivener's error.

   3. An affidavit filed under this subsection (5) shall state that the affiant has actual knowledge of, and is competent to testify to, the facts in the affidavit and shall include a description of the land, the title that may be affected by facts stated in such affidavit, a reference to an instrument of record containing such description, the name of the person appearing by the record to be the owner of such land at the time of the recording of the affidavit, and an acknowledgment that the affiant is testifying under penalty of perjury. The recorder shall index the affidavit in the name of the record owner.

History. Source: L. 27: P. 590, § 8. CSA: C. 40, § 114. CRS 53: § 118-6-9. C.R.S. 1963: § 118-6-9. L. 76: Entire section amended, p. 753, § 2, effective January 1, 1977. L. 80: (1) amended and (3) and (4) added, p. 708, § 1, effective July 1. L. 84: (1) amended, p. 979, § 1, effective July 1. L. 89: (1) amended, p. 348, § 2, effective April 5. L. 96: (1), (3), and (4) amended, p. 1554, § 1, effective July 1. L. 97: (4) repealed, p. 38, § 3, effective March 20; (1) amended, p. 20, § 2, effective July 1. L. 2001: (1.5) added, p. 294, § 1, effective July 1. L. 2003: (5) added, p. 835, § 3, effective August 6. L. 2010: (5)(b)(III) amended,(HB 10-1085), ch. 95, p. 326, § 7, effective August 11. L. 2019: IP(5)(b) and (5)(b)(III) amended,(HB 19-1172), ch. 136, p. 1723, § 235, effective October 1. History. Source: L. 27: P. 590, § 8. CSA: C. 40, § 114. CRS 53: § 118-6-9. C.R.S. 1963: § 118-6-9. L. 76: Entire section amended, p. 753, § 2, effective January 1, 1977. L. 80: (1) amended and (3) and (4) added, p. 708, § 1, effective July 1. L. 84: (1) amended, p. 979, § 1, effective July 1. L. 89: (1) amended, p. 348, § 2, effective April 5. L. 96: (1), (3), and (4) amended, p. 1554, § 1, effective July 1. L. 97: (4) repealed, p. 38, § 3, effective March 20; (1) amended, p. 20, § 2, effective July 1. L. 2001: (1.5) added, p. 294, § 1, effective July 1. L. 2003: (5) added, p. 835, § 3, effective August 6. L. 2010: (5)(b)(III) amended,(HB 10-1085), ch. 95, p. 326, § 7, effective August 11. L. 2019: IP(5)(b) and (5)(b)(III) amended,(HB 19-1172), ch. 136, p. 1723, § 235, effective October 1.

Analysis

• I. GENERAL CONSIDERATION.
• II. INSTRUMENTS TO WHICHSECTION APPLIES.
• III. NOTICE.
  • A. Record as Notice.
  • B. Notice of Unrecorded Instruments.

• IV. PRIORITIES.
  • A. General Principles.
  • B. Illustrative Cases.

Law reviews. For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 26 Dicta 321 (1949). For article, “The Perennial Problem of Security Priority and Recordation”, see 24 Rocky Mt. L. Rev. 180 (1952). For article, “Conclusiveness of United States Oil Shale Placer Mining Claim Patents”, see 43 Den. L. Ctr. J. 24 (1966). For note, “Creditor's Rights in Colorado and the Federal Tax Lien Act of 1966”, see 40 U. Colo. L. Rev. 433 (1968). For comment on Eastwood v. Shedd, 166 Colo. 136 , 442 P.2d 423 (1968), appearing below, see 41 U. Colo. L. Rev. 290 (1969). For note, “The Colorado Recording Act: Race-Notice or Pure Notice?”, see 51 Den. L.J. (1974). For article, “Race Notice or Pure Notice”, see 13 Colo. Law. 1405 (1984). For article, “Unrecorded PUD Plans: On the Frontier of Due Diligence”, see 19 Colo. Law. 1089 (1990). For article, “The Colorado Recording Act - Part I: History and Character of the Act”, see 24 Colo. Law. 1329 (1995). For article, “The Colorado Recording Act - Part II: Notice Under the Recording Act”, see 24 Colo. Law. 1573 (1995). For article, “The Colorado Recording Act - Part III: Priority of Recording”, see 24 Colo. Law. 2209 (1995). For article, “Title Fight Avoiding a Water Right Conveyancing TKO”, see 44 Colo. Law. 41 (March 2015). For article, “Buyers and Brokers Beware: The Contract-Deeding Trap for the Unwary”, see 45 Colo. Law. 49 (March 2016).

This section is constitutional, and does not violate the 14th amendment to federal constitution.Moore v. Chalmers-Galloway Live Stock Co., 90 Colo. 548 , 10 P.2d 950 (1932).

Term “purporting” in subsection (3) is not unconstitutionally vague. People v. Forgey, 770 P.2d 781 (Colo. 1989).

The intent of the general assembly in enacting this section was to halt the filing of invalid liens against real property. Turkey Creek L.L.C. v. Anglo Am. Consol. Corp., 43 P.3d 701 (Colo. App. 2001).

Evident purpose of this section is to provide an effectual remedy against the loss accruing to subsequent purchasers of real estate arising from the existence of secret or concealed conveyances thereof unknown to the subsequent purchaser. Hallett v. Alexander, 50 Colo. 37 , 114 P. 490, (1911); Lewin v. Telluride Iron Works Co., 272 F. 590 (8th Cir. 1921).

Recording acts have been enacted in response to a need to provide protection for purchasers of real property against the risk of prior secret conveyances by the seller. Page v. Fees-Krey, Inc., 617 P.2d 1188 (Colo. 1980).

This section was not enacted for the benefit of lienholders and the owners of incumbrances upon real estate only, but for all bona fide purchasers as well. McMurtrie v. Riddell, 9 Colo. 497 , 13 P. 181 (1886).

The last sentence in subsection (3) was intended to facilitate the quick withdrawal of an unjustified lien filed in the name of someone other than the individual who had recorded the document. Dahl v. Young, 862 P.2d 969 (Colo. App. 1993).

Applicability of section. This section applies to a deed which was theretofore executed but withheld from record eight years before the statute became operative and two years after the passage of the act. Moore v. Chalmers-Galloway Live Stock Co., 90 Colo. 548 , 10 P.2d 950 (1932).

The recording act applies to an instrument creating an overriding royalty carved out of the working interest in an oil and gas lease. Page v. Fees-Krey, Inc., 617 P.2d 1188 (Colo. 1980).

How protection effected. The protection of subsequent purchasers is effected by requiring every deed to be recorded before it can be of any effect as against such purchasers. Hallett v. Alexander, 50 Colo. 37 , 114 P. 490 (1911); Lewin v. Telluride Iron Works Co., 272 F. 590 (8th Cir. 1921).

This section is not abrogated by the stolen property statute. There is no recovery under the stolen property statute against a good faith purchaser who holds record title to real property, even if the real property was earlier conveyed under fraudulent circumstances. Strekal v. Espe, 114 P.3d 67 (Colo. App. 2004).

“Groundless document” as used in this section means one for which there is no rational basis in fact or law to support a proponent's claim. Int'l Tech. Instruments, Inc. v. Eng'g Measurement Co., 678 P.2d 558 (Colo. App. 1983); Harris v. Hanson, 821 P.2d 821 (Colo. App. 1991).

Claim of purchaser under a contract for the purchase and sale of property was groundless where purchaser refused to close on property for the agreed purchase price knowing or having reason to know at the time of recording the contract for purchase and sale as a lien that the filing presented a false claim to purchase the property. Harris v. Hanson, 821 P.2d 821 (Colo. App. 1991); Hohn v. Morrison, 870 P.2d 513 (Colo. App. 1993).

Although “willful” has not been defined within the context of this section it is appropriate to give it its plain and ordinary meaning. Malicious intent is not required for willfulness. Nor must the offending party have actually gained anything by his or her actions. All that is required is that the party acted voluntarily, purposefully, and with a conscious disregard for the consequences of his or her conduct. Hohn v. Morrison, 870 P.2d 513 (Colo. App. 1993).

Filing of lien document with reason to know that such filing would unjustifiably cloud property's title justifies charges under section, regardless of whether valid lien was created. People v. Marston, 772 P.2d 615 (Colo. 1989).

Subsection (3) prohibiting filing of frivolous lien on real property is violated when a party files a document which does not comply with requirements necessary to create a lien, knowing or having reason to know the document was unfounded. People v. Forgey, 770 P.2d 781 (Colo. 1989).

By its plain wording, subsection (3) provides that damages for false recording shall be the actual damages incurred but no less than one thousand dollars. It makes no mention of a daily damage penalty and none may be implied. Martinez v. Affordable Hous. Network, Inc., 109 P.3d 983 (Colo. App. 2004), rev'd on other grounds, 123 P.3d 1201 (Colo. 2005).

Notice of lis pendens was groundless and invalid under subsection (3) because the plaintiffs' original complaint sought only monetary damages and did not affect title to real property. The validity of a notice of lis pendens is determined when it is recorded, and the subsequent filing of an amended complaint that asserts an equitable lien claim cannot relate back to the date of the original complaint and thereby render an invalid notice of lis pendens valid. Brossia v. Rick Constr., Ltd., 81 P.3d 1126 (Colo. App. 2003).

Payment for the filing of and authorization for the issuance of deeds of trust indicated a purpose or intent to have deeds of trust recorded. Thus, trial court did not err in determining that deeds of trust were “offered” for recording. Turkey Creek L.L.C. v. Anglo Am. Consol. Corp., 43 P.3d 701 (Colo. App. 2001).

Purchaser under a contract for the sale and purchase of real property violated subsection (3) where the purchaser refused to close on property for the agreed purchase price, later relinquished his claim for specific performance of the sales contract, and refused to remove cloud on title of property after repeated requests by the sellers. Harris v. Hanson, 821 P.2d 821 (Colo. App. 1991).

There was evidence the defendant knowingly recorded a judgment lien after it had been fully satisfied since he had consulted with attorneys, stated that he was familiar with the operations of the county clerk and recorder, and had on a number of occasions recorded documents in the office to make them a matter of public record. Dahl v. Young, 862 P.2d 969 (Colo. App. 1993).

Trial court wrongly held that property owner claiming private prescriptive easement violated subsection (3) by filing sworn affidavits describing prior purchasers' historic use of the tract at issue on the grounds affidavits unjustifiably clouded title of adverse property claimants. The affidavits unjustifiably clouded title because property owner failed to obtain a court decree expressly establishing an easement prior to filing them. However, a party may lawfully record a document putting others on notice of a prescriptive easement over another's property regardless of whether a court has yet recognized the existence of the easement. Brown v. Faatz, 197 P.3d 245 (Colo. App. 2008).

Affidavits describing prior purchasers' historic use of the tract at issue are instruments encumbering or affecting title to real property within the meaning of subsections (1) and (3). Nonetheless, recording of the affidavits by property owner claiming easement, which clouded title of other property claimants, did not in and of itself constitute a violation of subsection (3). The statute only prohibits the recording of documents that the person knows or has reason to know are forged, groundless, contain a material misstatement or false claim, or are otherwise invalid. Here, the easement claimant did not know or have reason to know that the affidavits contained material misstatements, and the trial court's findings that claimant should have known the affidavits were “groundless” or “otherwise invalid” were based on misapprehensions of the law. Accordingly, property owner claiming easement did not violate subsection (3). Brown v. Faatz, 197 P.3d 245 (Colo. App. 2008).

Trial court's findings were deficient because although it determined the hourly rate there was no mention of the reasonableness of the hours expended or the propriety of the tasks performed. Dahl v. Young, 862 P.2d 969 (Colo. App. 1993).

Trial court did not err by determining that lis pendens filed by condominium purchasers was not spurious at the time it was filed. Purchaser's contract claim, while unsuccessful, was advanced in good faith. While purchasers' claim for specific performance that formed basis of lis pendens was effectively denied by the trial court's recognition that the contract that afforded the remedy of specific performance was terminated, purchasers advanced rational arguments, based upon facts and the law, in support of its continued existence and these arguments were not groundless or otherwise spurious. At the time of recording the lis pendens, purchasers did not know or have reason to know the trial court would later find the contract to be void under § 38-33.3-312 (5) . By extension, the lis pendens, while filed and recorded, was not a spurious document. Platt v. Aspenwood Condo. Ass'n, 214 P.3d 1060 (Colo. App. 2009).

Applied in Gillett v. Gaffney, 3 Colo. 351 (1877); First Nat'l Bank v. Campbell, 2 Colo. App. 271, 30 P. 357 (1892); Gates Iron Works v. Cohen, 7 Colo. App. 341, 43 P. 667 (1896); Shannon v. Timm, 22 Colo. 167 , 43 P. 1021 (1896); Wahrenberger v. Waid, 8 Colo. App. 200, 45 P. 518 (1896); Smith v. Russell, 20 Colo. App. 554, 80 P. 474 (1905); Mulford v. Rowland, 45 Colo. 172 , 100 P. 603 (1909); Brinker v. Malloy, 53 Colo. 186 , 125 P. 507 (1912); Brackett v. McClure, 24 Colo. App. 524, 135 P. 1110 (1913); Clay, Robinson & Co. v. Atencio, 74 Colo. 17 , 218 P. 906 (1923); Stetler v. Winegar, 75 Colo. 500 , 226 P. 858 (1924); Donahue v. Kohler-McLister Paint Co., 81 Colo. 244 , 254 P. 989 (1927); People ex rel. Fed. Land Bank v. Ginn, 106 Colo. 417 , 106 P.2d 479 (1940); Stewart v. Lamm, 132 Colo. 484 , 289 P.2d 916 (1955); Doyle v. McBee, 161 Colo. 130 , 420 P.2d 247 (1966); Plew v. Colo. Lumber Prods., 28 Colo. App. 557, 481 P.2d 127 (1970); First Nat'l Bank v. Groussman, 29 Colo. App. 215, 483 P.2d 398 (1971); Shamrock Land & Cattle Co. v. Hagen, 30 Colo. App. 127, 489 P.2d 607 (1971); Thomas & Son Transf. Line v. Kenyon, Inc., 40 Colo. App. 150, 574 P.2d 107 (1977), aff'd, 96 Colo. 386 , 586 P.2d (1978); Brown v. Brown, 43 Colo. App. 535, 608 P.2d 840 (1980); Kuehn v. Kuehn, 642 P.2d 524 (Colo. App. 1981).

Bond for conveyance of real estate. The assignment by the obligee or his assignee of a bond for the conveyance of real estate comes clearly within the provisions of subsection (1) of this section and, unless recorded will not take effect as against a subsequent bona fide purchaser or encumbrancer without notice. McFarran v. Knox, 5 Colo. 217 (1880).

Quitclaim deed effectual to pass real estate property. A quit claim deed is as effectual to pass the title to real estate as any other, and the purchaser accepting such deed, without notice of prior rights, will be as fully protected as if his deed contained full covenants of warranty. Bradbury v. Davis, 5 Colo. 265 (1880); Delta County Land & Cattle Co. v. Talcott, 17 Colo. App. 316, 68 P. 985 (1902); Houlahan v. Fin. Consol. Mining Co., 34 Colo. 365 , 82 P. 484 (1905); Hallett v. Alexander, 50 Colo. 37 , 114 P. 490 (1911); Kelsey v. Norris, 53 Colo. 306 , 125 P. 111 (1912).

A contract for future conveyance of lands is within subsection (1), and an assignment by the purchaser of his right under such contract, not recorded, is without effect as to a creditor of such purchaser who, without notice of the assignment, levies an execution upon the land. Salisbury v. La Fitte, 57 Colo. 358 , 141 P. 484 (1914).

Deed of release is a deed affecting title to real estate. Delta County Land & Cattle Co. v. Talcott, 17 Colo. App. 316, 68 P. 985 (1902).

Contract of joint adventure which gives a party an equitable interest in the real estate involved is one “affecting the title” thereto under subsection (1), and is recordable. Austin v. Stephen, 89 Colo. 177 , 300 P. 364 (1931).

Water adjudication decrees. The court recommended that a certified copy of water adjudication decrees be filed in the county clerk and recorder's office, as permitted by subsection (1), to give notice as there provided. Davis v. Hurt, 81 Colo. 10 , 253 P. 394 (1927).

Overriding royalty carved out of working interest in oil and gas lease is an interest in real property and is therefore subject to the rules of priority of this article. Fees-Krey, Inc. v. Page, 42 Colo. App. 8, 591 P.2d 1339 (1978), rev'd on other grounds, 617 P.2d 1188 (Colo. App. 1980).

Spouse's interest following filing of dissolution proceeding. Whatever interest a wife has in her husband's property upon the filing of a dissolution proceeding is still subject to the requirements of Colorado's recording laws. If the wife does not record, the ex-husband's trustee in bankruptcy may acquire superior rights. In re Harms, 7 B.R. 398 (D. Colo. 1980 ).

Recording statutes do not apply to the enforceability of planned unit development (PUD) plans. PUD plans are filed pursuant to legislative enactments and constitute a form of rezoning. Recording of PUD plan provisions under the recording act is not required because the notice goals of the recording act are satisfied by the PUD approval process. A PUD plan is not an instrument affecting title to real property within the purview of the recording statutes. South Creek Assocs. v. Bixby, 781 P.2d 1027 (Colo. 1989).

Race-notice statute cannot be used to determine the priority of creditors, because the judgment debtor did not have a legal or equitable interest in the property. Where a judgment debtor had neither a legal nor an equitable interest in a property, recording a judgment does not create a lien on the property, because there is no interest on which the lien could attach. Consequently, this section does not apply. Shepler v. Whalen, 119 P.3d 1084 (Colo. 2005).

This section is a race-notice statute. Nile Valley Fed. Sav. & Loan Ass'n v. Sec. Title Guarantee Corp., 813 P.2d 849 (Colo. App. 1991).

The race-notice system protects buyers who record their liens without notice of prior unrecorded conveyances or liens. Joondeph v. Hicks, 235 P.3d 303 (Colo. 2010).

Recording of deeds under this section is notice to all the world of the interest in land held by the person recording. Botkin v. Pyle, 91 Colo. 221 , 14 P.2d 187 (1932).

Purchaser may rely upon records. If, upon their face, the records are complete, and show that the title is good, in the absence of information to the contrary from any other source, he may safely rely upon them. Perkins v. Adams, 16 Colo. App. 96, 63 P. 792 (1901); King v. Ackroyd, 28 Colo. 488 , 66 P. 906 (1901); Delta County Land & Cattle Co. v. Talcott, 17 Colo. App. 316, 68 P. 985 (1902).

Purchaser is bound by record. A purchaser of real estate is bound to know what the records disclose concerning the title, and if they indicate the existence of some outside condition by which it may be affected, he is bound to investigate, and he is charged with knowledge of the facts to which the investigation would lead. Perkins v. Adams, 16 Colo. App. 96, 63 P. 792 (1901); King v. Ackroyd, 28 Colo. 488 , 66 P. 906 (1901); Delta County Land & Cattle Co. v. Talcott, 17 Colo. App. 316, 68 P. 985 (1902).

Unless otherwise provided by statute, a purchaser is bound by recitals in conveyances or other instruments of transfer in his chain of title even where the instrument containing the recitals is not recorded. Page v. Fees-Krey, Inc., 617 P.2d 1188 (Colo. 1980).

Creditor is charged with knowledge of homestead claims through recording statute, and his lack of knowledge through inadvertence would be immaterial. Am. Heritage Bank & Trust Co. v. Trees, 35 Colo. App. 147, 532 P.2d 380 (1974).

Notice or lack thereof to joint tenant is irrelevant to the determination of validity of the conveyance. Carmack v. Place, 188 Colo. 303 , 535 P.2d 197 (1975).

Person deemed to have constructive notice of recorded encumbrances. Arnove v. First Fed. Sav. & Loan Ass'n, 713 P.2d 1329 (Colo. App. 1985).

Proper recording of documents provides constructive notice of interests affecting title. Collins v. Scott, 943 P.2d 20 (Colo. App. 1996).

The record of an instrument is notice only to those persons claiming under the same chain of title who are bound to search for it. Collins v. Scott, 943 P.2d 20 (Colo. App. 1996).

Documents outside the chain of title provide no notice unless a possible irregularity appears in the record that indicates the existence of some outside interest by which the title may be affected. In such cases, a purchaser is bound to investigate and is charged with knowledge of the facts to which the investigation would have led. Collins v. Scott, 943 P.2d 20 (Colo. App. 1996).

Party was put on constructive notice of transfer by prior recording of quitclaim deed. A search of the grantor-grantee index from the date the will was admitted to probate would have disclosed the quitclaim deed. The deed was not outside the chain of title. Collins v. Scott, 943 P.2d 20 (Colo. App. 1996).

Amended judgment does not apply to innocent third party who lacks notice. Purchaser did not know that a recorded judgment would increase retroactively, nor would a reasonable investigation have revealed it. Goodman Assocs., LLC v. Winter Quarters, 2012 COA 96 , 292 P.3d 1060.

Recording in office of federal bureau of land management is not constructive notice to a person acquiring an interest in property in Colorado. Fees-Krey, Inc. v. Page, 42 Colo. App. 8, 591 P.2d 1339 (1978), rev'd on other grounds, 617 P.2d 1188 (Colo. 1980).

Where deeds of trust to property owned by a partnership were signed by the individual partners and recorded under their names, there was no indication of conveyance of the property by the partnership and the bankruptcy trustee for the partnership estate was not charged with constructive notice of the deeds of trust signed by the individual partners. Nile Valley Fed. Sav. & Loan Ass'n v. Sec. Title Guarantee Corp., 813 P.2d 849 (Colo. App. 1991).

The party preparing deeds of trust for signature is charged with the responsibility of complying with the statutes. Thus, the savings and loan association taking deeds of trust on property owned by a partnership as collateral on promissory notes could not claim the partnership's bankruptcy trustee had constructive notice of the deeds where the deeds were incorrectly prepared by the savings and loan association, were signed by the individual partners rather than by the partnership, and were filed under the partners' names. Nile Valley Fed. Sav. & Loan Ass'n v. Sec. Title Guarantee Corp., 813 P.2d 849 (Colo. App. 1991).

Status of purchaser of leased property. Having notice of tenancy by virtue of the lessee's possession, the purchaser of leased property has a duty to inquire of the lessee concerning its rights in the leased property, and such purchaser takes subject to all rights which would have been revealed by reasonable inquiry, including the lessee's rights of first refusal. Cohen v. Thomas & Son Transf. Line, 196 Colo. 386 , 586 P.2d 39 (1978).

Purpose of subsection (1). The meaning and intent of subsection (1) is that no prior unrecorded conveyance or contract, affecting the title to land, shall take effect as to any subsequent bona fide purchaser without notice, or as to any one who, in good faith and without notice of a prior unrecorded deed or other instrument, acquires a lien or incumbrance on the same tract of land. McMurtrie v. Riddell, 9 Colo. 497 , 13 P. 181 (1886).

Unrecorded deed ineffective against creditor without notice. An unrecorded deed does not take effect as against an execution creditor without notice. Knox v. McFarran, 4 Colo. 586 (1879); McMurtrie v. Riddell, 9 Colo. 497 , 13 P. 181 (1886); Jerome v. Carbonate Nat'l Bank, 22 Colo. 37 , 43 P. 215 (1896); Western Chem. Mfg. Co. v. McCaffrey, 47 Colo. 397 , 107 P. 1081 (1910); Hallett v. Alexander, 50 Colo. 37 , 114 P. 490 (1911).

As to bona fide purchasers. An unrecorded deed, though binding upon the grantor, his heirs, and devisees, is a nullity as to bona fide purchasers or encumbrancers without notice. Hallett v. Alexander, 50 Colo. 37 , 114 P. 490 (1911); Carroll v. Kit Carson Land Co., 24 Colo. App. 217, 133 P. 148 (1913).

Reformation of instrument not contrary to the purposes and policies of the state's race-notice statute. Even if a conservation deed was a “wild deed” (i.e., a deed in which the grantor was a stranger to the title, thus placing the document outside the chain of title), the purchaser had actual notice of that instrument before it purchased the property. Moreover, the deed advised the purchaser, in bold type and all-block capital letters, that the subject property was encumbered by a deed of conservation easement. In that case, the purchaser was not entitled to ignore the deed. Ranch O, LLC v. Colo. Cattlemen's Agric. Land Trust, , 361 P.3d 1063 .

When purchaser obtained its interest with actual knowledge that an instrument created or was intended to create an encumbrance on the property, even if the instrument was defective, the purchaser cannot ignore the instrument and then seek to defeat the instrument's reformation. Ranch O, LLC v. Colo. Cattlemen's Agric. Land Trust, , 361 P.3d 1063 .

Notice constructive if means exist to obtain knowledge. Notice may be constructive or implied from the fact that there existed means of knowledge which the party did not use. Jaramillo v. McLoy, 263 F. Supp. 870 (D. Colo. 1967 ).

Knowledge by agent that land across which easement ran was going to be sold and of closing date was sufficient to put easement purchaser on inquiry notice of existence of receipt and option contract to sell land, rendering easement subject to prior unrecorded interest under receipt and option contract. Enerwest, Inc. v. Dyco Petroleum Corp., 716 P.2d 1130 (Colo. App. 1986).

All instruments affecting title have same standing for recording purposes. All instruments affecting the title to real property are given the same standing for recording purposes and, by the terms of subsection (1), they may all be recorded, and if they are not recorded, they are without validity as against any class of persons holding any kind of rights except as between the parties themselves and those who have actual notice of the unrecorded instrument. Plew v. Colo. Lumber Prods., 28 Colo. App. 557, 481 P.2d 127 (1970).

Joint tenant not protected from unrecorded deed. A joint tenant is not in the “class of persons with any kind of rights” in the property, and thereby is not protected from an unrecorded deed. Carmack v. Place, 188 Colo. 303 , 535 P.2d 197 (1975).

Internal revenue service lien against property belonging to former husband does not reach former wife's interest in that property. Although unrecorded, the separation agreement, which severed the joint tenancy and conveyed a life estate to the former wife, prevented former husband from contesting the ownership of interest conveyed to her. The IRS stands in the shoes of the former husband, who has no rights to property interest conveyed to former wife to which the tax lien could attach, where the IRS stipulated that its tax levy did not reach any interest of the former wife. United States v. Gibbons, 71 F.3d 1496 (10th Cir. 1995).

Party which had obtained authorization from surface estate owner to drill test hole to determine existence and extent of coal deposits, but not from owner of unrecorded coal lease or owner of mineral estate as required, was not party “with any kind of rights” entitled to protection of recording statute against coal lease owner's action for unauthorized geologic exploration. Grynberg v. City of Northglenn, 739 P.2d 230 (Colo. 1987).

Recording statutes do not apply to the enforceability of planned unit development (PUD) plans. PUD plans are filed pursuant to legislative enactments and constitute a form of rezoning. Recording of PUD plan provisions under the recording act is not required because the notice goals of the recording act are satisfied by the PUD approval process. A PUD plan is not an instrument affecting title to real property within the purview of the recording statutes. South Creek Assocs. v. Bixby, 781 P.2d 1027 (Colo. 1989).

Defense of bona fide purchaser must be presented by answer unless it appears by the complaint. Allen v. Blanche Gold Mining Co., 46 Colo. 199 , 102 P. 1072 (1909).

On its face, the recording statute provides a method by which a later grantee of rights in real property can, under certain circumstances, perfect its title against an earlier grantee. However, a failure of the later grantee to qualify for the benefits of the statute does not necessarily mean that its interests are subordinate to those of an earlier grantee. If the later grantee has notice of the earlier unrecorded instrument or fails to record first, the recording statute simply fails to provide a mechanism for determining the priority of the competing interests, and none will be imputed to it. ALH Holding Co. v. Bank of Telluride, 18 P.3d 742 (Colo. 2000).

Instrument first recorded has priority. As between two trust deeds on the same property executed at the same time and as a part of the same transaction, the instrument first recorded is first in right. Bray v. Trower, 87 Colo. 240 , 286 P. 275 (1930).

The purchaser whose conveyance is first filed for record is entitled to a preference, and obtains the title, regardless of the date of its execution. Houlahan v. Fin. Consol. Mining Co., 34 Colo. 365 , 82 P. 484 (1905).

Where two trust deeds are given to secure payment of the purchase price of property, they are of equal dignity in this respect, and the one which is recorded first constitutes the senior lien of the two. Bray v. Trower, 87 Colo. 240 , 286 P. 275 (1930).

A junior deed first recorded, to one who purchases in good faith, is preferred to a prior deed not recorded. Kelsey v. Norris, 53 Colo. 306 , 125 P. 111 (1912).

This section is a “race-notice statute” granting priority to a second grantee only if he takes the instrument without notice of the prior conveyance and gets his instrument recorded ahead of the prior instrument. Eastwood v. Shedd, 166 Colo. 136 , 442 P.2d 423 (1968).

Order of judgment creditors is order transcripts filed. Equitable liens accrue to the benefit of judgment creditors in the order that the transcripts of judgment were filed. Fort Lupton State Bank v. Murata, 626 P.2d 757 (Colo. App. 1981).

Attachment lien takes precedence over unrecorded title. The lien of an attachment is an encumbrance within the meaning of subsection (1), and takes precedence over an unrecorded title or interest, of which the attaching creditor had no notice at the time of his attachment. Perkins v. Adams, 16 Colo. App. 96, 63 P. 792 (1901).

The “shelter rule” provides that one who is not a bona fide purchaser, but who takes an interest in property from a bona fide purchaser, may be sheltered in the latter's protective status. Strekal v. Espe, 114 P.3d 67 (Colo. App. 2004).

Under the shelter rule, party who buys real property from good faith purchaser who had no notice of potential title defect will acquire the status of that good faith purchaser without notice even though the party took the property with notice of a lis pendens. Strekal v. Espe, 114 P.3d 67 (Colo. App. 2004).

Donee with duly recorded instrument entitled to protection. The donee of real property, who has duly recorded the instrument of conveyance, is entitled to the protection of the Colorado conveyancing and recording act. Eastwood v. Shedd, 166 Colo. 136 , 442 P.2d 423 (1968).

Failure to file assignment. Where plaintiff neglected to avail himself of the permission afforded by subsection (1) to file his assignment, his equity must be held inferior to the equity of a subsequent purchaser of the mortgaged property, who relied solely upon the record title, which showed on its face an unencumbered title in his remote grantor. Stetler v. Winegar, 75 Colo. 500 , 226 P. 858 (1924).

Judgment lien superior to secret lien created by oral agreement. A judgment lien was held superior to any secret lien or trust existing in favor of the trustee created by oral agreement between the trustee and the cestuis que trust of which the judgment creditors had no notice. Teller v. Hill, 18 Colo. App. 509, 72 P. 811 (1903).

Judgment under creditor's bill deemed binding on purchasers from debtor. A judgment under a creditor's bill subjecting debtor's interest in lands to plaintiff's claim, is binding on purchasers from the debtor, although they were not parties to the suit, their deed being unrecorded at the time the action was instituted. Shuck v. Quackenbush, 75 Colo. 592 , 227 P. 1041 (1924).

Holder of prior perfected deed of trust has priority over an attorney's charging lien where holder of deed has no actual or constructive notice of the attorney's lien. Cottonwood Hill, Inc. v. Ansay, 782 P.2d 1207 (Colo. App. 1989).

The holder of an interest in real property does not acquire a preferred title to such property by filing first when such holder has agreed that a subsequent encumbrance is superior. Fleet Real Estate Funding Corp. v. Koch, 805 P.2d 1206 (Colo. App. 1991).