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...
