Hendrickson, 031116 INAGO, AGO 2016-4

Docket Nº:AGO 2016-4
Case Date:March 11, 2016
Ms. Brandye Hendrickson
AGO 2016-4
Official Opinion 2016-4
Indiana Attorney General Opinions
State of Indiana Office of the Attorney General
March 11, 2016
         Ms. Brandye Hendrickson          Commissioner          Indiana Department of Transportation          100 N. Senate Ave., Room N758          Indianapolis, IN 46204          RE: Payment of County Recording Fees          Dear Commissioner Hendrickson:          You requested from this office an opinion as to whether county recorders may charge the Indiana Department of Transportation ("INDOT") recording fees for descriptions, deeds, or other conveyance documents filed under Ind. Code § 8-23-7-4, Ind. Code § 8-23-7-31, and Ind. Code § 8-23-23-1. 1          BRIEF ANSWER          County recorders may not charge INDOT a fee for conveyance documents filed pursuant to Ind. Code § 8-23-7-31 and Ind. Code § 8-23-23-1.          ANALYSIS          A. Should INDOT be Charged Fees for "Descriptions" Filed Pursuant to Ind. Code § 8-23-7-4, Ind. Code § 8-23-7-31, or Ind. Code § 8-23-23-1?          INDOT acquires property, rights of way, and easements for a variety of purposes such as building, straightening, or widening highways, removing visual obstructions on highways, and building weigh stations or rest areas. See Ind. Code § 8-23-7-2. Ind. Code § 8-23-7-1 et seq. provides the procedures INDOT must usually follow when acquiring property. When the property or right is acquired, "a legal description of all rights-of-ways and easements, including the area of the land acquired, shall be filed by the department [INDOT] in the office of the recorder in the county in which the real property is located." Ind. Code § 8-23-7-31(a).2          A conflict exists between Indiana Code § 36-2-7-10(h) on the one hand, and Ind. Code § 36-2-7-10(g),3 Ind. Code § 8-23-7-31(a), and Ind. Code § 8-23-23-1 on the other over whether fees may be charged when INDOT files documents pursuant to Ind. Code § 8-23-7-4, Ind. Code § 8-23-7-31(a), and Ind. Code § 8-23-23-1. Ind. Code § 36-2-7-10 establishes fees that county recorders are required to charge for the services they provide. Subsection (h) of that statute provides that "[t]he state and its agencies and instrumentalities are required to pay the recording fees and charges that this section provides." However, Ind. Code § 36-2-7-10(g) states, "The county recorder may not tax or collect any fee for: … (2) performing any service under any of the following: … (B) IC 8-23-7. (C) IC 8-23-23." Additionally, both Ind. Code § 8-23-7-31(a) and Ind. Code § 8-23-23-1 contain provisions prohibiting recorders from charging INDOT, a state agency, fees for recording the...

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