Foreclosures and the Failure of the American Land Title Recording System

8 Pages Posted: 11 Jan 2011 Last revised: 9 Apr 2012

Date Written: January 10, 2011


In this essay, Marsh argues that the current foreclosure crisis should serve as a wake-up call for a long-overdue modernization of the American land title recording system. Lenders invented the Mortgage Electronic Registration System (MERS) because the land title system, developed in a far different time and place, failed to meet the needs of the modern real estate industry. But a private MERS-like system is not the answer. Instead, Marsh argues that the federal government should implement a solution that replaces both the existing local land title system and MERS.

An ideal system should be organized around some clear principles. It should be transparent. It should be easy to search, through dynamic, robust indexing, and easy to access, preferably through the Internet. Documents in PDF form should be down-loadable. Electronic filing should be facilitated. There should be uniformity and consistency in the rules governing the form and substance of documents eligible for recording. The system should be public. Establishing and protecting a clear registry of property interests is and should continue to be an essential function of government.

Keywords: MERS, mortgage, recording

JEL Classification: K11

Suggested Citation

Marsh, Tanya D., Foreclosures and the Failure of the American Land Title Recording System (January 10, 2011). Columbia Law Review, Vol. 111, No. 1, 2011, Available at SSRN: or

Tanya D. Marsh (Contact Author)

Wake Forest Law School ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

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