Opinion 90-30


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


COUNTIES -- Fees (exception from payment of)
COUNTY CLERK -- Fees (for recording satisfaction of mortgage)
FEES -- County Clerk (collection of fees for recording satisfaction of mortgage)

CIVIL PRACTICE LAW AND RULES, §§8017, 8021; SOCIAL SERVICES LAW, §106-a: A county clerk is entitled to a fee for recording a satisfaction of mortgage where the county department of social services is the mortgagee but the satisfaction of the mortgage is presented for recording by the mortgagor. A county social services official who presents for recording a satisfaction of a mortgage held by the county department of social services is not liable for any such fee.

This is in reply to your letter concerning fees for recording satisfactions of recorded mortgages held by a county department of social services (see Social Services Law, §106). You state that when one of these mortgages is paid in full, the county social services department prepares and executes a satisfaction of mortgage which is delivered to the mortgagor. You ask whether a recording fee is due the county clerk when the satisfaction is offered for recording by the mortgagor or other interested party on his behalf.

Social Services Law, §106 provides that a social services official responsible for the administration of assistance or care granted or applied for may accept a deed of real property and/or a mortgage thereon on behalf of the social services district for the assistance and care of a person at public expense (Social Services Law, §106[1]). The person giving such deed or mortgage may redeem the same, generally, by payment of all expenses incurred for the support of the person and for repairs and taxes paid on the property (Social Services Law, §106[2][a][1]).

There are several provisions of law that contain requirements pertaining to satisfaction of mortgages. Real Property Law, §275 provides that upon payment in full of the principal and interest due on a mortgage, the mortgagee must deliver to the mortgagor a certificate of discharge of that mortgage and present for recording a duplicate original to the recording officer and pay the recording fees due that officer. This statute, however, expressly provides that its requirements do not apply "to any mortgage granted to or made by the state of New York ... or any political subdivision of the state ...".

Section 1921(1) of the Real Property Actions and Proceedings Law requires any mortgagee, including a county department of social services, upon payment of a mortgage and upon the request of the mortgagor or any other person interested in the real property, to execute a satisfaction piece certifying that the mortgage has been paid or otherwise satisfied and discharged "and consenting that it be discharged of record". Further, Real Property Law, §321 prescribes the form of the satisfaction instrument and sets forth the duties of a recording officer to whom a proper discharge of mortgage is offered for recording. Generally, the recording officer is required to record any discharge of mortgage presented to him in proper form (Real Property Law, §321[2], [3]), regardless of who presents the instrument for recording. Therefore, although a county is required to execute a satisfaction piece upon receipt of a demand made pursuant to Real Property Actions and Proceedings Law, §1921, the county is not statutorily obligated to record a discharge of mortgage.

Civil Practice Law and Rules (CPLR), §8021(a) prescribes those fees which are payable to a county clerk for services in connection with "papers or instruments relating to real property", including a satisfaction or discharge of a mortgage (see CPLR, §8021[a][8]). The Social Services Law, however, provides that a social services official is not subject to any fee "for ... recording any instrument affecting real ... property ... pertaining to the exercise by the social services official of any of the powers conferred or duties imposed upon him by any of the provisions of this chapter" (Social Services Law, §106-a). The legislative history with respect to this statute does not specifically refer to a satisfaction of a mortgage, nor are there any judicial or administrative opinions in point. It is our opinion, however, that the statutory language is sufficiently broad to include the recording of a satisfaction of a mortgage previously accepted on behalf of the social services district pursuant to Social Services Law, §106(1) and that a social services official will not be required to pay a recording fee if he or she presents the instrument for filing.

We find further support for our conclusion in section 8017(a) of the CPLR. The county clerk is barred under that provision from charging or collecting "a fee for filing, recording or indexing any paper, document, map or proceeding filed, recorded or indexed for the county, or an agency or officer thereof acting in an official capacity..." (CPLR, §8017[a]; emphasis added).

Accordingly, it is our opinion that a county clerk recording a discharge of a mortgage held by a county department of social services is entitled to the fees prescribed therefor (CPLR, §8021) where the instrument is offered for recording by the mortgagor, but not where the instrument is offered for recording by a county social services official.

August 20, 1990
Norris L. Webster, Esq., County Attorney
County of Orleans