Request By:
Mr. Scott Collins
Attorney at Law
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have written to ask whether a clerk may refuse to record a deed, affidavit of descent or any other instrument relating to real property where the tendered instrument is not accompanied by the proper recording fees or where the instrument does not bear the proper indexing group number.
An instrument is to be recorded if it complies with the requirements of KRS Chap. 382, is delivered to the office of the recording officer and after the proper recording fees have been paid.
Carter Guaranty v. Cumberland & Manchester R. Co., 219 Ky. 207, 292 S.W.2d 812 (1927); KRS 64.015. Conversely, the clerk may refuse to record a tendered instrument which is not accompanied by the proper recording fee.
On the other hand, the clerk's authority to refuse to record an instrument which does not bear the proper "group indexing number" is questionable. The group index number is a device used in Boone County as a portion of its official "tract indexing" system. Each parcel or lot of land in Boone County is assigned a group index number. Thereafter, all instruments having anything to do with that parcel of land are indexed together under that group index number. This system of indexing was adopted in order to facilitate title searches. In order to ensure that tendered instruments are indexed with the proper parcel or lot of land, there is a local rule requiring the instrument to bear the proper group index number.
While the rule is an excellent practical idea, there is no authority which would give the fiscal court or the clerk the power to promulgate such a rule or to refuse to record an instrument because of the failure to place the group index number on the instrument. The fiscal court has the power to adopt an official county indexing system and to require the clerk to maintain that index. KRS 382.205. However, nothing in that statute gives the fiscal court or the clerk the authority to demand that all instruments bear the proper index number. Accordingly, this office is of the opinion that the clerk must record all instruments lodged for record that do meet the requirements of KRS Chap. 382 and which are accompanied by the proper recording fee though the instrument does not bear the group index number.
You have also asked whether a clerk who has refused to record an instrument which was lodged for record either because it was not accompanied by the correct fee or because it did not contain the proper group index number would be liable if in the interim another party filed an instrument which, because it was first recorded, gave that party a superior lien or if the refusal to record caused an advantageous sale of the property to fail.
Because the clerk has no duty to record an instrument lodged for record until the proper recording fees are paid, he or she would not be liable in the described circumstances where the refusal to record arises from the fact that the instrument is not accompanied by the proper fee.
If, on the other hand, the refusal to record arises from the fact that the instrument does not bear the proper group index number, the injured party may have a cause of action against the clerk for any damages sustained. In recording instruments, the clerk is performing a ministerial act. Cf.,
Shearer v. Hall, Ky., 399 S.W.2d 701 (1970). If the clerk, as a public officer, refuses or fails to carry out a ministerial act which the law affirmatively requires him to perform, the clerk may be compelled to answer for injuries sustained as the proximate result of that nonperformance.
Upchurch v. Clinton County, Ky., 330 S.W.2d 428 (1960).
You have also asked that we send you the full name of an ombudsman for the Commonwealth who might be enlisted to assist you in getting your deeds and affidavits recorded. We cannot comply with this request as to the best of our knowledge there is no such person or office who could assist you in this matter.