June 5, 1990
John R. Steele
Aurora County State's Attorney
P.O. Box 577
Plankinton, South Dakota 57368
OFFICIAL OPINION NO. 90-22
Register of Deeds recordation fees
Dear Mr. Steele:
You have requested an official opinion from this Office in regard to the following factual situation:
FACTS:
It has come to my attention that there is a discrepancy in the way that Registers of Deeds charge for the recording of instruments. Some Registers of Deeds are charging an additional $2.00 for what would otherwise be considered a one page document, when the recording stamp is placed on the back of the document. This is apparently on the theory that the recording stamp constitutes a second page or rider or addendum under SDCL 7-9-15(1).
Most Registers of Deeds, however, are not charging extra for the back of the document when it contains only the Register of Deeds' recording stamp and other information placed there by the Register of Deeds in the course of recording the documents. It would seem to me that the recording fees set forth in SDCL 7-9-15 for recording an instrument ought not to vary from county to county. Therefore, either some Registers of Deeds are overcharging for the recording of instruments or some are undercharging.
For your reference, I am enclosing photocopies of two deeds which I recently recorded. You will note that the Register of Deeds' filing stamp is on the front on one of the deeds and on the back of the other. You will also note that the fee assessed recording is $3.00 for the one on which the filing stamp is on the front, and $5.00 for the one on which the filing stamp is on the back. Except for the location of the filing stamp, I would say that each of these documents is a one page document.
Based upon that factual situation, you ask the following question:
QUESTION:
What is the proper recording fee for a one page document which contains all of the language of the document on one page, with only the Register of Deeds' filing stamps on the back of the document?
IN RE QUESTION:
The fees to be charged by a Register of Deeds are controlled by SDCL 7-9-15.
SDCL 7-9-15. The Register of Deeds shall charge and receive the following fees:
(1) For recording deeds, mortgages, and all other instruments not specifically provided for in this section or this code, the sum of three dollars for the first page and two dollars for each additional page or fraction thereof. Each rider or addendum shall be considered as an additional page. . . .
The answer to the question presented turns on whether the recording stamps of the Register of Deeds are a "rider or addendum" to the recorded document. SDCL 7-9-15(1). The terms "rider" and "addendum" are not defined in the South Dakota Codified Laws. Addendum has been defined as "[s]omething added or to be added." American Heritage Dictionary 15 (New College Ed. 1982). The term rider has been defined as "[a]n amendment or addition to a document or record." American Heritage Dictionary 1117 (New College Ed. 1982). To determine whether a Register of Deeds' recording stamp is a rider or addendum, further discussion of recordation of documents is necessary.
SDCL 43-28-11 states that, "[a]n instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the register's office with the proper officer for record." A deed is valid once it is properly executed by the grantor. The recordation of the deed is a ministerial act completed by the Register of Deeds for the purpose of giving notice to the public that the document exists. A Register of Deeds is required to endorse on the document the date, hour, and minute of the delivery of the document, and is also required to endorse on the document the page and book in which the instrument is recorded. SDCL 7-9-3. Nevertheless, SDCL 43-28-11 clearly states that the instrument is deemed recorded once deposited in the Register of Deeds office.
Traditionally, recordation of a document in the Register of Deeds' office meant the actual typing of the contents of the document into various record books. More recently, however, recordation of documents has been completed by microfilming the actual document. This is sanctioned by SDCL 1-27-4. Some counties that use microfilm to record documents may feel they are required to charge an additional $2.00 to pick up the Register of Deeds' recording endorsements because of the additional cost for use of the microfilming process.
Nevertheless, I am of the opinion that a Register of Deeds' recording stamp placed on the back of a document cannot be the basis for charging an additional $2.00 to record to the document. The terms "rider or addendum" indicate that the item is meant to be an integral part of the actual document. A recording stamp is not an integral part of the actual document, but merely evidence of the ministerial act completed by the Register of Deeds.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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