| 6. Priority in Fixtures: First to File or Record. |
Subsection (e)(1) [Maine cite subsection (5), paragraph (a)], |
which follows former Section 9-313(4)(b), contains the usual |
priority rule of conveyancing, that is, the first to file or |
record prevails. In order to achieve priority under this rule, |
however, the security interest must be perfected by a "fixture |
filing" (defined in Section 9-102 [Maine cite section 9-1102]), |
i.e., a filing for record in the real property records and |
indexed therein, so that it will be found in a real-property |
search.. The condition in subsection (e)(1)(B) [Maine cite |
subsection (5), paragraph (1), subparagraph (ii)], that the |
security interest must have had priority over any conflicting |
interest of a predecessor in title of the conflicting |
encumbrancer or owner, appears to limit to the first-in-time |
principle. However, this apparent limitation is nothing other |
than an expression of the usual rule that a person must be |
entitled to transfer what he has. Thus, if the fixture security |
interest is subordinate to a mortgage, it is subordinate to an |
interest of an assignee of the mortgage, even though the |
assignment is a later recorded instrument. Similarly if the |
fixture security interest is subordinate to the rights of an |
owner, it is subordinate to a subsequent grantee of the owner and |
likewise subordinate to a subsequent mortgagee of the owner. |