On July 1 of this year, H.B. 525 (Ohio) went into effect and many title agents in Ohio have been dealing with the disastrous consequences ever since.  It seemed simple enough, at least to the legislators... it was designed to require certain margins and font sizes on recordable documents.  If the documents didn't conform, the recorder still had to accept them, but they had to charge an additional $20 fee.  Unfortunately, the recorders got a little carried away (to put it politely) and title companies (and lenders and consumers) began experiencing a huge increase in recording fees.

After a few complaints, there seems to be a fix in the works.  Finally... someone will seek to legislate a little common sense.

Basically, the new requirements consist of the following: 

• Computer font size of at least 10 point;
• Minimum paper size - 8 1/2 X 11, Maximum paper size - 8 1/2 X 14;
• Black or Blue Ink ONLY;
• No use of highlighting;
• Margins of 1 inch on each side of the page and on the bottom;
• 3 inch margin on the top of the first page, reserved for recorder, auditor, & engineer;
• 1 1/2 inch margin on the top of each of the remaining pages.

These requirements have been strictly enforced.  It is not sufficient that the printed document conform to the standards; there can be nothing in those margins at all.  Here are a few examples of things that have subjected recordings to the additional $25 filing fee that some people may not have considered.

• The title company's "return to" stamp that lets the county know where to return the recorded document.  These stamps are often placed in the margins.
• The title company's order number.  Many title companies place their order number on the documents so they can easily locate the corresponding file when the document is returned.
• The borrower's initials on mortgages.  These are often located in the lower right hand corner of the document in the margin.
• The borrower's signature extending into the right hand margin of the page.
• The notary's stamp.  It may be difficult to place the notary seal far enough into the document to avoid the margins if you are using the crimping-style seal.
• The page numbers in the bottom margin and smaller than a 10pt font.

I sent letters to a few of our legislators with some examples of recordings that we had that were assessed the additional $20.  I explained that in many cases, we have very little control over the documents we record. Many are prepared by the lender and some are already executed by the time we get them.  As much as we are willing to comply with the requirements on documents that we prepare, we simply don't prepare all of the documents we must record.

I did receive a reply from one of our Representatives.

This bill was intended to create a cleaner document the consumer can utilize and ensure documents can be legally clear and binding in court.  Unfortunately, some recorders have become overzealous and gone beyond the intention of the bill.

I have spoken with the former president of the Ohio County Recorder's Association and he informed me they are working on corrections to the bill to fix the problems listed in your letter.  He informed me that a bill will be forthcoming in the months ahead.

I don't really understand what kind of problems we had with recorded documents being "binding in court," but I certainly do know what "overzealous" means.  That was a good way to describe it. 

At times, I just couldn't make any sense of the way in which the recorders were assessing the fee, and I'm sure it wasn't any clearer to members of the public.  I overheard a conversation with a clerk and a member of the general public who was trying to record something.  I could only describe what I heard as "Dewey Oxberger logic." (Dewey Oxberger was a character in Stripes (1981) played by John Candy).  The conversation went something like this:

Jane Q. Public:  I need to record this.

Clerk:  This doesn't conform to the law, we have to charge you an extra $20.

Jane Q. Public:  What do you mean?

Clerk: The law requires a three inch margin at the top and a one inch margin on the sides and at the bottom. These margins aren't big enough, so the laws requires that I charge an additional $20.

At this point, Jane wasn't very happy, but she didn't say anything.  There was an awkward pause and for some reason, the clerk continued...

Clerk:  If it were signed before July 1st, we wouldn't have to charge the $20. But, this was signed in September, so we have to charge the additional fee.

Compare that to the following scene from Stripes:

The platoon arrives in Italy and everyone heads for a bunk.  Pvt. "Cruiser" begins to climb up on the top bunk and Dewey "Ox" Oxberger stops him.

Dewey Oxberger:  What are you doing?  No, no... get off.  Get off.  See... you gotta make my bunk.  See, we're in Italy.  The guy on the top bunk, he's gotta make the guy on the bottom's bunk... he's gotta make his bed, all the time.  See, it's in the regulations.  See, if we were in Germany, I'd have to make yours.  But we're in Italy, so you gotta make mine.  [shrugs his shoulders] Regulations.

I guess its hard to argue with logic like that.  I'm sure Jane didn't understand why a document would be assessed a different fee based on when the document was signed.  The margins are the same no matter when the document was executed - so if the fee is assessed based on the margins, why should it matter when it was dated?  Well... Jane, we're in America... if we were in Germany, the clerk would have had to give you $20, but we're in America, so you gotta pay her.  That's the law.  That kind of logic only works in the movies... and in our government, I guess.

The good news is that the State Representative was right... they are working on changes.  Nothing has been officially introduced in the legislature yet, but there is a draft floating around for comment among the state's county recorders.

ORC 317 (B)(2)

The county recorder shall accept for recording an instrument or document that does not conform to the requirements set forth in division (A) of this section but shall not charge and collect the additional fees specified in division (b)(1) of this section for page numbers, hand-written initials, bar codes, copyright information, typed or printed initials, or any other incidental information that is no essential to the indexing process or to the legal validity of the document and that may appear in either of the side margins or in the bottom margin of the document.  In addition, any signatures and initials that may appear within the document need not satisfy the font size requirement and no additional fees may be charged or collected by the county recorder for such a nonconformance.

This will certainly go a long way to alleviating the problems.  Although many of the problems we have encountered should not have been issues, anyway, because ORC § 317.114 should not be read to apply to anything in the execution of the document.  ORC § 317.114 states, "an instrument or document presented for recording to the county recorder shall have been prepared in accordance with all of the following requirements." To me, this means signatures, initials, notary stamps, etc., were not intended to be scrutinized for strict compliance with the statute.

I still contend that this legislation was never necessary.  First, if the issue was legibility sufficient for reproduction, ORC § 317.112 requires that instruments presented to the county recorder for recording “shall be sufficiently legible to permit their reproduction by photographic or micrographic processes.”  This gave the recorder the authority to reject documents that were not adequate for reproduction and the latitude to apply their reasonable judgment.

Second, if the issue was sufficient space for county recording stamps, a better solution would have been for the recorder to attach a blank page for their stamps, if needed, at a cost to the consumer of only $8.00 per ORC § 317.32.

But, there is nothing wrong with the statute in theory.  It creates standards that make it easier for our documents to be recorded and copied into the official records. It just would have been nice to see the county recorders apply a little common sense in deciding when to assess the fee. 

Hopefully, something like the draft language above will pass in the General Assembly and we will finally be able determine the actual recording fee again. 

On one occasion, we were told that four documents we were attempting to record for a client each required the additional fee.  We notified the client and waited for them to send us an additional check.  After delaying the filing for four days, we took it back and were told that only one of them required the extra $20, the others were all fine.  This shouldn't happen.  Even with very specific standards set forth in the Revised Code, and overzealous recorders, there was still no consistency. 

Though I'd be happier if they would just repeal the whole darned thing, I'll settle for a reasonable fix like the one being considered currently. 

Robert A. Franco
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