80 J. Kan. Bar Assn 7, 32 (2011). On the Record, The County Register of Deeds Office in Kansas.

AuthorBy Robert W.Parnacott

Kansas Bar Journal

Volume 80.

80 J. Kan. Bar Assn 7, 32 (2011).

On the Record, The County Register of Deeds Office in Kansas

Kansas Bar Journal Volume 80, Sepetember 2011 80 J. Kan. Bar Assn 7, 32 (2011) On the Record, The County Register of Deeds Office in Kansas By Robert W.Parnacott [32]

The Register of Deeds Office in every county in Kansas is a busy place. People come to the office to record documents, research records, and even to get their passport. The Register of Deeds, one of the "row" offices in county government,(fn1) is a creature of statute, and it is an important component of the private property system.(fn2) Because it is limited in nature to the legislative grant of authority and responsibility, the office cannot accept just any document for recording; nor can it simply charge whatever fee thought appropriate.

This article will provide an overview of the basic authority and responsibilities of the office, particularly what documents can be recorded, as well as on what grounds the register of deeds can reject a document. The article will also update the reader on subsequent statutory changes, case law, and attorney general opinions regarding the mortgage registration fee act, which was the subject of a prior Journal article.(fn3) The next section will review common problems noted in documents being submitted for filing, with ways to avoid or resolve those issues. The final section will address various other issues that arise in the day to day operations of the office. For example, the 2001 revised Uniform Commercial Code (UCC) has been previously covered in a Journal article,(fn4) but this article will briefly review the responsibilities of the register of deeds related to the UCC.

I. Introduction

The Kansas Constitution empowers the legislature to "confer powers of local ... administration upon political subdivisions."(fn5) The legislature may also "provide for such county ... officers as may be necessary."(fn6) Although references to the authority of the register of deeds can be found throughout the Kansas Statutes Annotated, the primary source of authority and responsibility is in Chapter 19, Article 12.(fn7) The register of deeds can appoint a deputy register of deeds, as well as assistants to fulfill the statutory responsibilities of the office.(fn8) The register of deeds may also administer oaths.(fn9)

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II. Recording of Real Estate Documents

The primary function of the office is the recording of real estate related documents, whether instruments of conveyance (e.g., deeds), mortgages, assignments of mortgages or other interests in real estate, easements, or other documents involving real estate. The register of deeds' responsibility is to "have custody of and safely keep and preserve all books, records, deeds, maps, papers and microphotographs" submitted for recording.(fn10) The office is also the repository for "maps and plats of cities, subdivisions or additions to the same within [each] county."(fn11) The documents must be appropriately indexed, and copies may be maintained in paper or other authorized formats.

K.S.A. 58-2221 authorizes the register of deeds to record written instruments that convey real estate, oil and gas interests or estates, "estates or interest created by any lease or easement involving wind resources and technologies to produce and generate electricity," and instruments that may affect real estate. The person recording the instrument must provide the name and address of the person who is receiving the real estate interests conveyed, or that person's designee.(fn12) This information is used by the county clerk to update the mailing address records for tax statements.

Other real estate-related documents that are expressly authorized for recording, including the following:

* Statutory liens;(fn13) * Designations of pesticide management areas;(fn14) * Government ordinances, resolutions and orders (these are usually required to be certified copies of the ordinance, etc.);(fn15) * Maps, plats, and surveys;(fn16) * Affidavits of platting errors;(fn17) * Annexation agreements between cities and land-owners;(fn18) * Applications, certificates of appointment, and appraisals of abandoned watercourses;(fn19) * Certificates of incorporation of drainage districts;(fn20) * Planned unit development plans;(fn21) * Municipal energy agency agreements;(fn22) * Statements or certificates regarding artesian wells;(fn23) * Leases, affidavits and other documents related to oil and gas;(fn24) * Releases of abandoned pipeline easements;(fn25) * Discharges, releases, and assignments of mortgages or liens;(fn26) * Notices under the marketable title act;(fn27) * Revocations of grantee beneficiary under transfer on death deeds;(fn28) * Statements of lis pendens filings;(fn29) * Environmental notices;(fn30) * Releases and abandonments of railroad right of way;(fn31) * Certificates or notices of water appropriation and reservation rights;(fn32) and * Certified copies of death certificates.(fn33) Authority to record real estate related documents may also be found in the Kansas Administrative Regulations.(fn34)

Some instruments are required to have specific information included, or meet other types of statutory requirements. For example, instruments conveying real estate interests related to wind resources and technologies must have information regarding limitations on any obstructions that are prohibited or limited.(fn35) Assignments or releases of mortgages may only be signed by certain persons: the mortgagee or the mortgagee's authorized attorney-in-fact; an assignee of record, a personal representative, or by the lender or a designated closing agent if the property is subject to sale, financing, or refinancing.(fn36) Kansas real property tax law also provides for separate taxation of buildings and land, where the building is owned by one taxpayer and the land is leased to that taxpayer by another taxpayer.(fn37) The lease agreement must be filed with the register of deeds, and must be clearly identified with the words "building on leased ground" on the first page of the agreement.

Recording instruments that convey real estate interests involve more than the register of deeds office. Copies of those instruments, after recording, are forwarded to the county clerk to update the transfer record showing the new ownership.(fn38) If the grantor on the instrument conveying title is not the prior grantee shown on the last preceding conveyance, the clerk will be unable to update the transfer record until the discrepancy

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is resolved. The clerk may also transfer ownership if presented with a final district court decree or judgment that directs the change of real estate ownership.(fn39)

III. Other Documents Recorded or Filed in the Office of the Register of Deeds

In addition to the real estate documents noted above, the following documents are authorized, and sometimes required, to be recorded. * Interlocal agreements between municipalities(fn40) * Certificates of dissolution of credit unions(fn41) * Savings and loan associations merger agreements(fn42) * Articles of incorporation(fn43) * Orders of appointment of receivers for insolvent corporations(fn44) * Bonds for certain elected officers(fn45) * Amendments to articles of incorporation for irrigation districts(fn46) * Powers of attorney(fn47) * Military discharge papers(fn48) * Declarations regarding grain elevators and warehouses(fn49) * Certificate of incorporation of groundwater management or water assurance districts(fn50) * Minutes and records of dissolved groundwater management districts(fn51)

IV. Mortgage Registration Act

The statutory text of the Mortgage Registration Act(fn52) has not changed, with a minor exception,(fn53) since the prior Journal article. There have been several reported appellate opinions, and attorney general opinions, since that time. Before those authorities are reviewed, a brief overview of the key provisions of the act may be helpful. The definition of a "mortgage" is very broad, going beyond the traditional mortgage form; and the definition has two separate types of documents that can be determined to be mortgages. First, a mortgage, for the purposes of the act, is "every instrument by which a lien is created or...

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