Pa. Commonwealth Court Confines Recorder of Deeds to Ministerial Acts

Commonwealth Court Confines Recorder of Deeds to Ministerial Acts

By John R. Embick, Esq. -- December, 2012

Co-Chairman, Environmental Law Section

The rapid development of the Marcellus Shale for the production of gas has increased the activities of various governmental agencies, among them the Recorder of Deeds offices in the affected counties. These offices have seen significant increases in real estate transactions related to natural gas production. Specifically, leasing transactions related to natural gas development have increased. These leases must be recorded in order provide constructive notice of their existence and to be valid against subsequent bona fide purchasers.

The extent of the discretion exercised by the Recorder of Deeds offices has been unclear for decades. In the case of Chesapeake Appalachia, LLC v. Ginger Golden, in her capacity as Wayne County Recorder of Deeds, No. 883 C.D. 2011, (Pa Commw. Ct. Slip Op. 1/27/2012), Senior Judge Friedman has provided some answers.

The Chesapeake Appalachia case involved an attempt by a natural gas producer to record "blanket assignments" of natural gas leases. The assignments contained multiple gas leases that presumably were being assigned from one lessee to another lessee. The Recorder of Deeds argued, among other things, that the form of the blanket assignments made it impossible (or perhaps difficult) to reference the assignments to the lessors. The Recorder of Deeds contended that this affected the integrity of the records, and insisted upon the filing of individual lease assignments.

Commonwealth Court ruled that the Recorder of Deeds did not have this discretion. Senior Judge Friedman held that the Recorder of Deeds is a largely ministerial office, and the office must record all documents within the scope of Pennsylvania's recording statutes which (1) are properly acknowledged; and (2) have had the appropriate fee paid (some county ordinances also require the Uniform Parcel Identifier number). The court recognized that gas leases are real estate conveyances, and have been recorded since the 1890's.

Senior Judge Friedman cited with approval the federal district court case of Woodward v. Bowers, 630 F. Supp. 1205, 1207 (Pa. M.D. Pa. 1986) (emphasis omitted):

"In short, the Recorder is a ministerial officer charged with recording all documents presented to him. The only situations in which a Recorder may refuse to record a document presented to him are where the appropriate fee is not paid, where the document is not of the type that is statutorily entitled to recording . . . and where the document on its face lacks a proper acknowledgment. The Recorder is truly just a "custodian" of documents."

Time will tell whether this truncation of Recorder of Deed's office discretion will enhance or degrade the function of the recording system.