Request By:
Mr. William H. Walden
Assistant Jefferson County Attorney
546 Starks Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a question relating to taxes or recording fees. The question reads as follows:
"When an instrument has a tract of land that is in two counties, the instrument is to be recorded in both counties. If a fee was charged in one county should the $1.00 fee also be charged in the other county?"
KRS 382.110(1) provides that all deeds and mortgages and other instruments required by law to be recorded to be effectual against purchasers without notice, or creditors, shall be recorded in the county clerk's office of the county in which the property conveyed, or the greater part thereof, is located. Thus if such an instrument is recorded in the county in which a greater portion of the land lies, that one recording makes such record of full constructive notice. Shively v. Gilpin, KY., 66 S.W. 763 (1902).
It appears that if a deed contains land conveyed under one boundary as contiguous property, then KRS 382.110(1) requires the deed to be recorded in the county in which a greater portion of the one contiguous tract lies. If the deed, or other instrument required to be recorded, involves two or more tracts which are not contiguous, then as to a particular tract of the instrument, the instrument must be recorded in the county in which a greater portion of the particular tract of land lies. Branaman v. Black Tam Mining Company, Ky., 446 S.W.2d 573 (1969) 575. As Judge Davis wrote in Branaman, above, the better and usual practice of recording is to record deeds and other instruments affecting title to real estate in each county in which any part of the real estate affected is situated, although the statute does not require this.
Actually where the land instrument is recorded in two counties, the clerk in each county should be paid any applicable clerk's fees.
If this $1.00 you mention is really the tax of $1.00 imposed on each power of attorney to convey real property or on each mortgage or deed of real property, then the $1.00 tax could only be collected by one of the clerks as covering the whole deed transaction. Otherwise, if the $1.00 tax [see KRS 142.010(1)(d)] is paid to two clerks, double taxation would be involved. Second Street Prop. v. Fiscal Court of Jefferson Cy., Ky., 445 S.W.2d 709 (1969) 715. Under the latter case, the court held that to constitute double taxation the two taxes must be imposed on the same property by the same governmental entity during the same taxing period for the same taxing purpose.