Stinner, 011017 NEAGO, AGO 17-1

• Case Date: January 10, 2017
• Court: Nebraska

Senator John Stinner AGO 17-1 No. 17-001 Nebraska Attorney General Opinions State of Nebraska Office of the Attorney Central January 10, 2017          SUBJECT: Authority of a Register of Deeds to Refuse to Record an Instrument or to Withdraw an Instrument After Recording          REQUESTED BY: Senator John Stinner Nebraska State Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General, Lynn A. Melson, Assistant Attorney General          You have requested, an opinion from this office on four questions relating to the authority of a register of deeds to refuse to record a document or to require certain changes to be made to a document prior to filing. You informed us that you are considering a bill for the 2017 legislative session that relates to the statutory authority of a register of deeds and have attached a draft of the legislation which would amend Neb. Rev. Stat. §§ 23-1503.01, 23-1506 and 23-1311(2012). You have pbsed the following questions:

(1) Whether a register of deeds has the authority to refuse to record a document or to withdraw documents from record which meet the statutory formatting and signature requirements and for which the: correct fee will be paid.

(2) Whether a register of deeds has the authority, before filing a document, to require legally valid changes to be made to such document.

(3) Whether the county is liable for expenses incurred as a result of rerecording documents which were recorded in error (e.g. filed in the improper index or alphabetized improperly).

(4) Whether the refusal by a register of deeds to file a document that meets the statutory requirements for filing, and the withdrawal of a document that is already of the record, are misdemeanors under Neb. Rev. Stat. §§ 84-1213 (2014) and 23-1507 (2012).

         BACKGROUND          At the outset, we note it is our long-standing policy not to provide opinions to members of the Legislature on the interpretation or constitutionality of existing statutes. Op. Att'y Gen. No. 157 (Dec. 24, 1985). Accordingly, we normally would decline to provide an opinion on the questions presented. As you have proposed legislation which could be impacted by our conclusions, we will proceed to respond to your questions.          Neb. Rev. Stat. §§ 23-1501 to 23-1528 (2012) set out the various duties of a county register of deeds with regard to the recordation and indexing of instruments affecting real estate. The general duties of a register of deeds in Nebraska are set out at Neb. Rev. Stat. § 23-1506 (2012), which provides, in pertinent part, that a register of deeds "shall also record or cause to be recorded all deeds, mortgages, instruments, and writings presented to him or her for recording and left with him or her for that purpose." Neb. Rev. Stat. § 23-1507 (2012) provides that a "register of deeds who shall neglect to perform any of the duties described in section 23-1506 shall be guilty of a Class IV misdemeanor."          There are also statutes in Chapter 76, Article 2 of the Nebraska statutes which pertain to the execution and recording of real estate conveyances and which will be discussed below to the extent they impact the duties of a register of deeds.          DISCUSSION          1. Authority to refuse to record a document or to withdraw documents          Your first question is whether a register of deeds has the authority to refuse to record a document or to withdraw documents from record which meet the statutory formatting and signature requirements and for which the correct fee will be paid. In other words, you are inquiring about what appears to be a mandatory duty to record all instruments pursuant to Neb. Rev. Stat. § 23-1506. For the reasons set forth below, we conclude that, under current statutes, a register of deeds should refuse to record a document and may withdraw documents from record in limited circumstances in which the instruments are not entitled to be recorded under Nebraska law. While, as a general rule, the duties of a register of deeds under Nebraska statutes are ministerial, our office has issued several prior opinions...