The Urban Lawyer

Privacy and Public Real Estate Records: Preserving Legacy System Reliability Against Modern Threats

by Emily Roscoe & Charles Szypszak
House for Sale

House for Sale

Emily Roscoe is an instructor and doctoral candidate in the School of Information and Library Science at the University of North Carolina at Chapel Hill. She completed a J.D. from the University of North Carolina School of Law and an M.PA. from the University of North Carolina School of Government.
Charles Szypszak is a professor of public law and government at the School of Government at the University of North Carolina at Chapel Hill. He completed a J.D. from the University of Virginia. For eighteen years before joining the faculty in 2005, he was an attorney focusing on real estate transactions and disputes.

I. Introduction

MOST PEOPLE ARE ALERT FOR EVILDOERS WHO WANT TO PROFIT by exploit-ing others’ private account information. Concern about information privacy also arises in public discussions about government measures to monitor email and Internet use. At the same time, modern American culture seems to decry any restriction on citizen access to information that the government keeps. These modern concerns require law and policy makers to struggle with finding the proper boundary between a free flow of necessarily public information and space in which individuals have a justifiable expectation of privacy.

Usually absent from the discussion about privacy and security is any attention to the nature of public records about real estate ownership. These records are essential to enforceable property rights and their transfer. They fulfill this role based on an expectation of permanently unfettered public access. While owners and lenders always have had to be concerned about the authenticity and reliability of public real estate records, and the potential that they could be used to stake fraudulent ownership claims, until recently the recording system rarely has been used to inflict harm apart from a claim involving the real estate itself. This has changed with the rise of schemes to exploit the public record system by recording documents that cause trouble and inflict financial harm on law enforcement officials, prosecutors, and judges.

The freedom with which real estate records can be found and viewed, and with which individuals can add to them, poses a unique set of risks and challenges. Buyers and investors rely on attorneys and other professionals to consummate their transactions. A natural inclination is to assume that the government also polices real estate ownership filings and ensures their validity. But this is not how it works. The only government body directly involved in a real estate transaction — a local register of deeds — merely provides a place to record a document and give public notice of it.1 This results in an efficient system in which parties need not await government approvals of a transfer, and with risks that they can manage with legal due diligence and private title insurance. Freedom of access and government neutrality also can make the records a potential tool for abuse by those who wish to file something fraudulent to cause trouble for an owner.

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