Most real property paralegals at all involved in any sales or leasing process will eventually have to deal with the county recorder and the state uniform commercial code system. The county recorder is, in essence, the office which tracks ownership, long-term leases, and liens (of most types) on real property. This means that deeds, long-term leases (or memoranda), tax liens, mortgages, and other documents are all filed with the county recorder, and become part of the public record. The uniform commercial code system also tracks liens, but that system is used for liens on personal property, and is based on a statewide system.

The system of recording real property which is now somewhat familiar to you originated prior to the foundation of the United States during the transition in England from feudal law to more of an administrative state.[1] Deeds were first called “charters” and dealt with requirements that claims of ownership of any sort in land be in writing (remember the statutes of frauds?). Even prior to the establishment of the United States, the requirement of recording was clearly established, as the following excerpt indicates:

By the stat. 27 of Eliz. 4. against fraudulent conveyances, it is enacted that all deeds made to defraud or deceive purchasers shall be void. This is very like our act. All deeds not recorded shall be void.[2]

Other cases from the post-colonial time period reference the office of the recorder and the legal requirement that deeds be recorded. Modern cases have somewhat modified the strict requirement of recording, but that matter we shall discuss in a different chapter. Indiana was established as a state in 1816, and the office of the recorder was established nearly simultaneously, due to the inclusion in the Indiana Constitution of 1816 the following:

There shall be elected in each county a Recorder, who shall hold his office during the term of seven years, if he shall so long behave well: Provided that nothing herein contained shall prevent the clerks of the circuit Courts from holding the office of recorder.[3]

Early cases from the state of Indiana reference that fact, such as the following excerpt shows:

He also offered Lamb, the recorder of the county, who had taken the acknowledgment of both deeds, as a witness to prove that the lessor of the plaintiff, before he purchased the lot, had notice of the existence of the defendant's deed.[4]

Governor Whitcomb of Indiana, along with legislators, called for the adoption of a second constitution in Indiana in 1848, for a variety of reasons.[5] Therefore, Indiana adopted a second constitution in 1861, which has been amended a variety of times. Both in the original constitution and as it stands now, Article VI, Section 2, includes a provision for a county recorder. It now states:

There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years.[6]

ith administrative offices, the general assembly passes what is called “enabling legislation” – that is, laws that define the precise duties with which an office is tasked. Finally, one interesting fact to note is that the individuals who serve in many of these offices are required to reside in the county in which they serve, per the Indiana Constitution:

All county, township, and town officers, shall reside within their respective counties, townships, and towns; and shall keep their respective offices at such places therein, and perform such duties, as may be directed by law.[7]

[1] "In Deed and Word (1100-1300)" History in Deed: Medieval Society & The Law in England, 1100-1600. Ed. Charles Donahue, Jr. Harvard Law School Library. Web. 16 May 2015.

[2] Knight v. Triplet, 1740 WL 11 (Va. Gen. Ct. Oct. 1740).

[3] "Article XI." Constitutions of 1816 and 1851 of the State of Indiana and Amendments. Indianapolis: Wm. B. Burford, Contractor for State Print. and Binding, 1895. 25. Print.

[4] Ricks v. Doe ex dem. Wright, 2 Blackf. 346, 347 (1830).

[5] Kettleborough, Charles. Constitution Making in Indiana: A Source Book of Constitutional Documents, with Historical Introduction and Critical Notes. Indianapolis: Indiana Historical Commission, 1916. 185. Print.

[6] Ind. Const. art. VI, § 2. The same article also stipulates that: “All county, township, and town officers, shall reside within their respective counties, townships, and towns; and shall keep their respective offices at such places therein, and perform such duties, as may be directed by law.” Ind. Const. art. VI, § 6.

[7] Ind. Const. art. VI, § 6.

The county recorder is defined statutorily in Indiana pursuant to Indiana Code § 36-2-11-1, et. seq. Most of that code section consists of administrative requirements for dealing with different types of documents, for the formatting of documents, and on interaction with other offices of local government (such as the auditor). Some of the more important statutes for our purposes set forth the procedures for recording documents and the record-keeping requirements attendant upon those procedures.

The recorder must record all instruments in the order in which they are received in the records office, and establish a procedure that allows the public to access those records, but also protects the records from loss or damage. This procedure must be posted publicly. [1] The date the document is received, the names of the parties to the document, a description of the premises in question, and the fees paid to record the document must be kept by the recorder in an entry book. [2] In addition, the recorder must keep a record of each volume of instruments recorded which is indexed by grantor in alphabetical order, cross referenced to the grantee, and vice-versa. [3] The recorder must also maintain separate indexes of deeds for real estate and mortgages on real estate, indexed alphabetically by name of the grantor / mortgagor and grantee / mortgagee, and must include a concise description of the real property, the date of the deed or mortgage, and the number or letter of the book and page where recorded.[4] The formatting requirements of any given instrument, and exceptions to those requirements, are also established by statute.[5] Finally, the statute permits the recording of memorandum of leases, which are documents which consist of a summary of the important parts of a lease in land.[6] The reasoning is that, while parties may wish to maintain confidentiality as to many parts of a lease, one or both parties may wish to record the lease so that, in the event the land is transferred or mortgaged, the lessee’s rights may be preserved.

The recorder may not record a deed of partition, a conveyance of land (deed, mortgage, etc.), or an affidavit of transfer unless the auditor of the county has stamped on it “duly entered for taxation subject to final acceptance for transfer”, “not taxable”, or “duly entered for taxation.[7]” This ensures that all transfers of land which result in a taxable event or change the person who will pay the tax are accounted for by the auditor’s office.

[1] Ind. Code § 36-2-11-8.

[2] Ind. Code § 36-2-11-9; this is further defined at Ind. Code § 32-21-2-10.

[3] Ind. Code § 36-2-11-12(a).

[4] Ind. Code § 36-2-11-12(b).

[5] See Ind. Code §§ 36-2-11-15 through 36-2-11-16, and § 36-2-11-26; also see I.C. § 36-2-7.5-1, et. seq. on regulating recording documents containing social security numbers.

[6] Ind. Code § 36-2-11-20.

[7] Ind. Code § 36-2-11-14.

Other sections of the Indiana code indicate documents which are recordable, in addition to those referenced in I.C. § 36-2-11-1, et. seq. The following is not intended as an exhaustive list of either document or procedure, but will give you an idea of the documents you are most likely to encounter in any given practice. The majority of the documents show up in Title 32 of the Indiana Code, entitled “Property,” especially in I.C. § 32-21-1-1, et. seq., entitled “Conveyance Procedures for Real Property.”

One of the most important documents to be recorded is the deed.[1] Other documents which are recorded include declarations of condominium,[2] fencing agreements,[3] leases longer than three years in length,[4] mechanic’s liens,[5] mortgages,[6] and common-law liens.[7] In addition, under the statutes for these documents, there are procedures for lifting, canceling, or revoking them, such as filing a release of lien.[8]

[1] Now come on – if you’re surprised by this sentence, report to your professor at the beginning of class that you have not done any reading at all this semester, and you need to write 100 times before next class, “The deed is an important document; I shall do my reading.”

[2] Ind. Code § 32-25-7-1.

[3] Ind. Code § 32-26-3-1.

[4] Ind. Code § 32-31-4-1.

[5] Ind. Code § 32-28-3-3.

[6] Ind. Code § 32-31-4-1.

[7] Ind. Code § 32-28-13-5.

[8] Ind. Code § 32-28-6-1.

Similarly to the county recorder, the county auditor has existed in Indiana for a long time. While there was no provision for a county auditor in the Constitution of 1816, the Constitution of 1861 did include such a provision. If you will recall, the Indiana Constitution now states:

There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years.[1]

Also similarly to the recorder, the auditor has legislation passed which establishes the specifics of responsibility and operation of the office. Its powers are located at Indiana Code § 36-2-9-1, et. seq.

The auditor is what is called the “fiscal officer” of a county.[2] Black’s Law Dictionary defines the auditor as:

A public officer whose function is to examine and pass upon the accounts and vouchers of officers who have received and expended public money by lawful authority.

In Indiana, the duties of an auditor include, for example: replacing outdated or worn maps used by the office,[3] publishing standard forms for those doing business with the office,[4] acting as the clerk (or secretary) of the county fiscal body, which requires various actions,[5] initiate lawsuits for collection of bonds, notes, etc., owed to the county,[6] and keeping track of money collected, appropriations, and settlement of accounts, by the county fiscal body.[7] With all of that said, the auditor has some very specific real-property-related functions which are our concern here.[8]

Recall that the recorder may not record a deed of conveyance (and some other documents) without a stamp by the auditor.[9] At the time the auditor makes that stamp, the auditor may also assign a tax identification number to the parcel in question. The tax identification number is usually that established by the Department of Local Government Finance in Ind. Code § 6-1.1-5-2, entitled “Index Numbering System.” That number is defined as “a unique identifier assigned to…a real property record…[10] for use by assessment officials and the county auditor and county treasurer offices.[11] The number consists of a series of 18 digits, which are separated by hyphens, and of which each group has a meaning. The real parcel numbering system is keyed to the public land survey system,[12] and is structured as “00-00-00-000.000-000.” The first set of two numbers is the county number (such as St. Joseph being “71”), the second two are the township and range numbers, and the third is the section number. The first part of the fourth set are block numbers for urban areas – if there are no block numbers, these are zeroes. The fourth set in its entirety is the permanent parcel number assigned to a parcel of land. The last three are a two or three digit number which indicates the state-assigned taxing district in which the parcel is located.[13] This identification number is used in various ways by the recorder, assessor, and auditor for tax purposes, though it does not substitute for a legal description, as it cannot be used legally to indicate size or location of the parcel.[14]

[1] Ind. Const. art. VI, § 2.

[2] Ind. Code § 36-2-9-2(c).

[3] Ind. Code § 36-2-9-5.

[4] Ind. Code § 36-2-9-6.

[5] Ind. Code §§ 36-2-9-8, 36-2-3-6.

[6] Ind. Code § 36-2-9-10.

[7] Ind. Code §§ 36-2-9-12, 36-2-9-13, 36-2-9-15.

[8] Why do you think we’re talking about this? I suppose a general overview of the functions of county offices would be interesting in and of itself…but we’re all about the real property.

[9] Ind. Code § 36-2-11-14.

[10] May also be used in personal property records, mobile homes, oil and gas leases, a billable utility assessment, other special assessments, a distributable property record, and any other assessments which require a tax bill. 50 IAC 26-2-50.

[11] 50 IAC 26-2-50.

[12] 50 IAC 26-8-1(b)(1).

[13] This is established by 50 IAC 26-8-1(b)(2)(A)-(F).

[14] Ind. Code § 36-2-9-18(c).

While not mentioned in the Indiana constitution like the recorder and the auditor, the assessor is subject to the same constitutional residency requirements by statute.[1] With that said, the assessor’s duties are established by constitutional requirement, which states:

The General Assembly shall provide, by law, for a uniform and equal rate of property assessment and taxation and shall prescribe regulations to secure a just valuation for taxation of all property, both real and personal.[2]

[1] Ind. Code § 36-2-15-2.

[2] Ind. Const. art. X, § 1

In this chapter, we have discussed various county offices which are important to the relationship of real property to local government entities. The county recorder is one of the most important, as it is the means by which interests and transfers of real property are recorded. The other offices, namely the auditor and assessor, are more important when it comes to taxation.