2023 New Mexico Statutes › Chapter 14 - Records, Rules, Legal Notices, Oaths › Article 9 - Records Affecting Real Property › Section 14-9-1 - Instruments affecting real estate; recording.

All deeds, mortgages, leases of an initial term plus option terms in excess of five years, or memoranda of the material terms of such leases, assignments or amendments to such leases, leasehold mortgages, United States patents and other writings affecting the title to real estate shall be recorded in the office of the county clerk of the county or counties in which the real estate affected thereby is situated. Leases of any term or memoranda of the material terms thereof, assignments or amendments thereto may be recorded in the manner provided in this section. As used in this section, "memoranda of the material terms of a lease" means a memorandum containing the names and mailing addresses of all lessors, lessees or assignees; if known, a description of the real property subject to the lease; and the terms of the lease, including the initial term and the term or terms of all renewal options, if any.
History:
Laws 1886-1887, ch. 10, § 1; C.L. 1897, § 3953; Code 1915, § 4786; C.S. 1929, § 118-108; 1941 Comp., § 13-201; 1953 Comp., § 71-2-1; 1991, ch. 234, § 1.
ANNOTATIONS
Compiler's notes.
— Laws 1991, ch. 234, § 4 defined "leasehold" to mean an estate in real estate or real property held under a lease and validates as correct and legally effective filings or recordings to give constructive notice any actions taken prior to April 4, 1991 to file or record leases, memoranda, assignments or amendments thereto, leasehold mortgages or other writings affecting leaseholds or any interests in leaseholds in accordance with legal requirements for the filing or recording of writings affecting the title to real estate or real property.
Cross references.
— For filing municipal assessment liens,
see
3-36-1 NMSA 1978.
For notice of possession of public land of United States,
see
19-3-1 NMSA 1978.
For townsite patents,
see
19-4-1 to 19-4-3 NMSA 1978.
For recording assignment of mortgages,
see
48-7-2 NMSA 1978.
For record of survey requirements,
see
61-23-28.2 NMSA 1978.
For filing and recording of changes of ownership in water rights,
see
72-1-2.1.
The 1991 amendment,
effective April 4, 1991, added the catchline; inserted "leases of an initial term plus option terms in excess of five years, or memoranda of the material terms of such leases, assignments or amendments to such leases, leasehold mortgages" in the first sentence; and added the second sentence.
I. GENERAL CONSIDERATION.
Purpose.
— Sections 14-9-1 and 14-9-3 NMSA 1978 are not intended to protect creditors of the owners of property, but to impart information to those dealing with the property respecting its transfer and encumbrances.
First Nat'l Bank v. Haverkampf
, 1911-NMSC-053, 16 N.M. 497, 121 P. 31,
aff'd
, 235 U.S. 689, 35 S. Ct. 204, 59 L. Ed. 426 (1914);
Ilfeld v. de Baca
, 1905-NMSC-007, 13 N.M. 32, 79 P. 723,
rev'd on other grounds
, 1907-NMSC-014, 14 N.M. 65, 89 P. 244 (decided prior to 1923 amendment of 14-9-3 NMSA 1978).
Function of recording statutes.
— In loans of money secured by property, recording statutes provide for notice to other potential lenders and indicate the upper limits of financing.
New Mexico Bank & Trust Co. v. Lucas Bros.
, 1978-NMSC-062, 92 N.M. 2, 582 P.2d 379.
Certainty afforded by recording.
— Because potential lenders rely upon recorded mortgages to determine whether to make other loans, there must be certainty as to the extent to which a mortgage encumbers property.
New Mexico Bank & Trust Co. v. Lucas Bros.
, 1978-NMSC-062, 92 N.M. 2, 582 P.2d 379 (decided on facts which occurred prior to passage of 48-7-9 NMSA 1978).
Petitioner was not entitled to the protection of the Recording Act.
— Where husband and wife executed a promissory note secured by a mortgage on real property in Santa Fe, New Mexico, and where the mortgage was signed by both husband and wife, but where the promissory note was signed only by husband, and where husband also signed a quitclaim deed, which was recorded in Santa Fe county in 2017, in favor of himself and wife, and where, in 2018, a court in California entered a judgment dissolving the marriage of husband and wife and adopting a marital settlement agreement stipulated by the parties that divided their assets and stated that the real property in Santa Fe was separate property purchased by husband before the marriage, and where, in 2018, plaintiff filed a complaint for foreclosure on the property and received a default judgment after none of the defendants answered the complaint, and where the property was sold at auction in 2019 to a limited liability corporation (LLC), the sale of which was approved by the district court, and where, prior to the court's approval of the sale, husband assigned his right of redemption to petitioner TAL Realty and wife assigned her right of redemption and issued a quitclaim deed for her right of redemption to the LLC on September 4, 2019, both of which were recorded with the county clerk on September 9, 2019, and wife also assigned her right of redemption to petitioner Kaushal on September 20, 2019, and where petitioners filed competing petitions for redemption of the property, and where petitioner Kaushal argued that he was a good faith purchaser or a subsequent innocent purchaser for value entitled to the protection of the Recording Act because county records showed that the property was owned jointly by husband and wife, petitioner Kaushal's argument was without merit, because regardless of the efficacy of the quitclaim deed from wife to the LLC on September 4, 2019, petitioner Kaushal was on constructive notice that there was some sort of cloud on the title of wife's right of redemption at that time, and yet still purchased wife's right of redemption. As such, petitioner Kaushal was not a good faith purchaser when he was assigned wife's right of redemption on September 20, 2019, and cannot claim the protections of the Recording Act.
Nationstar Mortgage v. Kaushal
, 2023-NMCA-051.
No time requirement for recording instruments.
— There is no requirement that an instrument be recorded within a particular period of time; the order in which deeds appear on the record is not important in a notice jurisdiction.
Angle v. Slayton
, 1985-NMSC-032, 102 N.M. 521, 697 P.2d 940.
II. APPLICABILITY TO PARTICULAR INSTRUMENTS.
The recording act applies to tax deeds.
The recording act does not apply to tax liens.
Cano v. Lovato
, 1986-NMCA-043, 105 N.M. 522, 734 P.2d 762, cert. denied, 104 N.M. 246, 716 P.2d 1267, cert. quashed, 105 N.M. 438, 733 P.2d 1321 (1987).
The recording act does not apply to tax liens.
Cano v. Lovato
, 1986-NMCA-043, 105 N.M. 522, 734 P.2d 762, cert. denied, 104 N.M. 246, 716 P.2d 1267, cert. quashed, 105 N.M. 438, 733 P.2d 1321 (1987).
Provisions applicable to Mexican land grants.
— This article applies to Mexican land grants.
Yeast v. Pru
, 292 F. 598 (D.N.M. 1923).
Provisions applicable to mortgages.
— Mortgages affecting real estate are governed by this section.
Shafer v. McCulloh
, 1934-NMSC-012, 38 N.M. 179, 29 P.2d 486.
Provisions not applicable to assignments of mortgages.
— Sections 14-9-1 to 14-9-3 NMSA 1978 do not require the recordation of an assignment of a mortgage securing the payment of a negotiable promissory note, to protect the holder from payments made by the mortgagor, or subsequent purchaser, to the original mortgagee.
Hayden v. Speakman
, 1914-NMSC-077, 20 N.M. 513, 150 P. 292.
Assignment of unrecorded land contract.
— The assignment of an unrecorded land contract, which assignment was neither acknowledged nor proven in any form to entitle it to be recorded, is not such an instrument as this section requires to be placed of record.
Early Times Distillery Co. v. Zeiger
, 1902-NMSC-001, 11 N.M. 221, 67 P. 734.
Executory contracts entitled to record.
— An executory contract of sale of real estate, when duly executed and acknowledged, is a writing entitled to record.
McBee v. O'Connell
, 1911-NMSC-049, 16 N.M. 469, 120 P. 734, appeal after remand 1914-NMSC-088, 19 N.M. 565, 145 P. 123
Applicability to revocable trusts.
— The protection afforded by the New Mexico recording acts is inapplicable to a revocable trust that does not affect the title to the original property.
Withers v. Board of Cnty. Comm'rs
, 1981-NMCA-032, 96 N.M. 71, 628 P.2d 316.
Restrictive covenant running with the land shall be enforced.
— Where venture company owned 116 acres of property and split the property into four tracts, imposing identical restrictive covenants upon each tract when it was sold that prohibited each tract from being divided into parcels of less than five acres and that specifically stated that the restrictive covenant ran with the land, and where defendants purchased a five-acre parcel within one of the four tracts and sold two and one-half acres of their five-acre parcel, the district court did not err in enforcing the restrictive covenant on behalf of adjacent landowners, because a restrictive covenant that runs with the land binds the covenantor's successors in interest and applying the general rule that covenants burdening land sold under a general plan of restriction can be enforced by one landowner against another within a subdivision.
Cobb v. Gammon
, 2017-NMCA-022.
Law reviews.
— For article, "Survey of New Mexico Law, 1979-80: Property," see 11 N.M. L. Rev. 203 (1981).
For annual survey of New Mexico Law of Property, see 20 N.M.L. Rev. 373 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 66 Am. Jur. 2d Records and Recording Laws §§ 1, 54 to 68, 73.
Covenant or easement affecting another parcel owned by grantor, record of deed or contract for conveyance of one parcel with, as constructive notice to subsequent purchaser or encumbrance of second parcel, 16 A.L.R. 1013.
Rights as between purchaser of timber under recorded instrument and subsequent vendee of land, 18 A.L.R. 1162.
Effect of failure to record executory contracts for sale of real estate, 26 A.L.R. 1552.
Grantee or mortgagee by quitclaim deed or mortgage in quitclaim form as within protection of recording laws, 59 A.L.R. 632.
Effect of actual notice of unrecorded instrument to purchaser from one without notice, 63 A.L.R. 1367.
Recovery of tax or assessment paid to procure recording of deed, 64 A.L.R. 117, 84 A.L.R. 294.
Right of one claiming through heir, devisee, or personal representative to protection against unrecorded conveyance or mortgagor by ancestor or testator, 65 A.L.R. 360.
Necessity of recording tax deed to protect title as against interest derived from former owner, 65 A.L.R. 1015.
Alteration in deed or mortgage with consent of parties thereto after acknowledgment or attestation as affecting notice from record thereof, 67 A.L.R. 366.
Right to compensation for improvements as affected by constructive notice by record of true title or interest, 68 A.L.R. 288, 82 A.L.R. 921.
Subrogation to prior lien of one who advances money to discharge it and takes new mortgage as affected by recording of intervening lien, 70 A.L.R. 1407.
Assignment of future rents as within recording laws, 75 A.L.R. 270.
Necessity of recording extension of mortgage or deed of trust by subsequent agreement to cover additional indebtedness, 76 A.L.R. 589.
Registration as notice to creditor of fraudulent conveyance, which will start running of limitation, 76 A.L.R. 869, 100 A.L.R.2d 1094.
Bankruptcy as invalidating, as against all creditors, instrument executed by bankrupt which under state law is valid as to creditors becoming such after record but invalid as to creditors prior to record, 76 A.L.R. 1200.
Title lost by failure to record as cloud on title, 78 A.L.R. 116.
Rights of vendee under executory land contract not recorded as against subsequent deed or mortgage by vendor, 87 A.L.R. 1515.
Right of seller of fixtures retaining title thereto, or a lien thereon, as against prior mortgagee of realty as affected by record of the mortgage, 88 A.L.R. 1335, 111 A.L.R. 362, 141 A.L.R. 1283.
Recording laws as applied to assignment of mortgages on real estate, 89 A.L.R. 171, 104 A.L.R. 1301.
Right of executor or administrator of insolvent estate to take advantage of failure to record or file or refile conveyance or mortgage executed by his decedent, 91 A.L.R. 299.
Who may take advantage of failure to renew real estate mortgage as provided by statute, 97 A.L.R. 739.
Nonpayment of all or part of consideration at time of receiving notice, actual or constructive, of a prior instrument, as affecting right of one otherwise protected by recording law against prior unrecorded deed or mortgage, 109 A.L.R. 163.
Validity of statute requiring recordation of tax certificate within designated time, 111 A.L.R. 258.
Recording of life tenant's deed purporting to convey fee as rendering vendee's possession adverse to remainderman during life estate, 112 A.L.R. 1047.
Power of attorney under which deed or mortgage is executed, as instrument entitled to record, 114 A.L.R. 660.
Fraudulent misrepresentation or concealment, public records as constructive notice of, so as to start running of statute of limitations against action for fraud, 152 A.L.R. 461.
Restrictions in lessor's record title as to use of premises as affecting rights between lessee and lessor, 165 A.L.R. 1178.
Purchase-money mortgage as within provision of statute defeating or postponing lien of unrecorded or unfiled mortgage, 168 A.L.R. 1164.
Statutes precluding enforcement of mortgage unless holder complies with conditions respecting recording of amount remaining unpaid, 174 A.L.R. 652.
Record of instrument which comprises or includes an interest or right that is not a proper subject of record, 3 A.L.R.2d 577.
Omission from deed of restrictive covenant imposed by general plan of subdivision, 4 A.L.R.2d 1364.
Agreement between real estate owners restricting use of property as within contemplation of recording laws, 4 A.L.R.2d 1419.
Validity and construction of regulations as to subdivision maps or plats, 11 A.L.R.2d 524.
Relative rights to real property as between purchasers from or through decedent's heirs and devisees under will subsequently sought to be established, 22 A.L.R.2d 1107.
Personal covenant in recorded deed as enforceable against grantee's lessee or successor, 23 A.L.R.2d 520.
Effect of recording instrument on determination of its character as a will or deed, 31 A.L.R.2d 532.
Adverse possession by one claiming under or through deed by cotenant as affected by record of deed, 32 A.L.R.2d 1214.
Necessity that mortgage covering oil and gas lease be recorded as real estate mortgage, and/or filed or recorded as chattel mortgage, 34 A.L.R.2d 902.
What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.
Record of instrument without sufficient acknowledgment as notice, 59 A.L.R.2d 1299.
Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.
Priority as between mechanic's lien and purchase-money mortgage as affected by recording, 73 A.L.R.2d 1407.
Record of deed to cotenant as notice to other cotenants of adverse character of grantee's possession, 82 A.L.R.2d 5.
Trustee's duty to record mortgage securing bondholders, 90 A.L.R.2d 501.
Construction and effect of "marketable record title" statutes, 31 A.L.R.4th 11.
Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.
26 C.J.S. Deeds § 73; 59 C.J.S. Mortgages § 201.