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Article
Dealing with Dirty Deeds: Matching Nemo Dat Preferences with Property Law Pragmatism
University of Kansas Law Review (2015)
  • Donald J. Kochan
Abstract
An organizing principle of the rule of law based on individualism and order is expressed by the Latin maxim nemo dat quod non habet – roughly translated to mean that one can only give what they have or one can only transfer what they own.  Yet when title disputes arise between two or more purchasers, we have accepted pragmatically that exceptions must be made to nemo dat and that, at times, we may have to, in essence, validate fraud and other dirty deeds.  The Article outlines the basic place of the nemo dat principle in our system of law, introduces the tensions between the ideal adherence to the maxim and the realities in the world that necessitate exceptions to (or a sometimes less-than-ideal achievement of) the maxim, summarizes the recording acts and their purposes (along with the types of notice and their uses), and exposes the tensions these recording systems each have with a strict notion of nemo dat.  It explains why the protections for bona fide purchasers are necessary to facilitate markets in property and serve other goals, while examining the role of individual responsibility – particularly as it relates to purchaser obligations to record and examine records – as the core justification for setting the rules in a manner that first-in-time title holders sometimes lose out to subsequent purchasers. 

Pragmatism concerns make some nemo dat exceptions necessary, but we should find ways to minimize the need for invoking such exceptions principally by shrinking the pool of those who fit the criteria for the bona fide purchaser exception.  This Article proposes that we should search for ways to inject more information about land conveyances into the public view – beyond traditional recording mechanisms – so that more and earlier notice of possible competing property claims is available to responsible purchasers exercising due diligence. 

To accomplish that goal, this Article presents a proposal to take advantage of what can be characterized as “the underexploited utility of inquiry notice.”  The Article outlines the components of a proposed new and innovative service called the “Title-Related Inquiry Notice Triggering System” (TINTS).  As outlined, TINTS would operate in a manner that would provide a means for purchasers of property to protect their claim to title even earlier than official recording might accommodate.  TINTS, or other innovations like it, can assist us in matching nemo dat preferences with property law pragmatism.
Keywords
  • property law,
  • land title,
  • real estate transactions,
  • recording acts,
  • notice,
  • nemo dat quod non habet,
  • bona fide purchasers,
  • property conveyancing,
  • land registries
Publication Date
November, 2015
Citation Information
Donald J. Kochan, Dealing with Dirty Deeds: Matching Nemo dat Preferences with Property Law Pragmatism, 64 U. Kan. L. Rev. 1 (2015).