1997-15
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Cite as N.Y. Op. Att'y Gen. No. 1997-15
REAL PROPERTY LAW §§ 258 291; COUNTY LAW ART 12.
The county clerk must accept for recording any instrument
that is properly acknowledged and executed. Real Property Law
§ 258, by its own terms, sets forth acceptable short forms and
allows for the use of other forms of instruments. It contains no
language requiring that certain information be presented in an
instrument before it is filed, nor does it authorize the clerk to
reject documents that do not contain specific information or
display the information in a particular form.
March 10, 1997
Owen B. Walsh, Esq.
Informal Opinion
County Attorney
No. 97-15
County of Nassau
Nassau County Executive Building
One West Street
Mineola, NY 11501-4820
Dear Mr. Walsh:
You have asked whether the county clerk must record any
instrument properly executed and acknowledged that is presented
for recording or whether the county clerk may refuse to record
instruments that do not contain the information detailed in Real
Property Law § 258. That section is entitled "Short forms of
deeds and mortgages" and states that
the use of the following forms of instruments
for the conveyance and mortgage of real
property is lawful, but this section does not
prevent or invalidate the use of other forms
. . ..
The introduction is followed by Schedules A through R, which
set forth forms for various instruments. You have advised us
that the county clerk's office declines to record instruments
that do not contain the information detailed in the forms that
appear in section 258.
We conclude that the clerk must accept for recording any
instrument that is properly acknowledged and executed. Section
258, by its own terms, sets forth acceptable short forms and
allows for the use of other forms of instruments. It contains no
language requiring that certain information be presented in an
instrument before it is filed, nor does it authorize the clerk to
reject documents that do not contain specific information or
display the information in a particular form.
2
Similarly, other provisions of the Real Property Law direct
the clerk to file instruments offered for recording when
accompanied by the proper fee. See, e.g., § 291. Article 12 of
the County Law does not authorize the county clerk to evaluate
documents presented for filing to determine their validity. In a
prior opinion, we concluded that the county clerk's duty under
the Real Property Law is to accept a deed for filing if it is
submitted in recordable form and that the clerk is not authorized
or required to ascertain the accuracy or veracity of a deed. Op
Atty Gen (Inf) No. 96-39. Moreover, as we previously have
concluded, conveyancing and recording requirements are matters of
State concern that are not subject to regulation by local law.
1960 Op Atty Gen (Inf) 115; Op Atty Gen (Inf) No. 92-55.
Application of varying local standards would not be appropriate.
Thus, we conclude that the county clerk must accept for
recording any instrument that is properly acknowledged and
executed, and may not refuse to record instruments that do not
contain the information detailed in Real Property Law § 258.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,
SIOBHAN S. CRARY
Assistant Attorney General