Bulletin: NY000177

Dear Associates:

We have received reports that instruments have been inconsistently rejected for recording at the Nassau County Clerk's office.

Power of Attorney
Among other things, it appears that the Clerk is requiring that where an instrument is executed by an attorney-in-fact, the signature line must make reference to the recording status of the power attorney. There does not appear to be a statutory basis for this, but it rather appears that the move has been made because the general "all-purpose" acknowledgment form does not make any reference to the recording information. (We also understand the same position has been taken by the City Register in NYC). While we may not agree with the Clerk's position, this is an issue where it ought not be difficult to accommodate the Clerk's wishes.

A signature line for an attorney-in-fact should look something like this:

__________________________________________
John Smith by George Hamilton, his attorney-in-fact,
pursuant to a Power of Attorney dated ___/___/___,
[intended to be recorded simultaneously herewith] {or}
[recorded in the office of the (____County Clerk)
(City Register for _________County)
on___/___/___ in Liber (Reel) ___ page___.]

General Reminders
You are reminded to take the following steps:

Please make every effort to make sure instruments are in proper recordable form prior to presenting them for recording. Sometimes the clerk really is correct on a rejection.

Make sure the page count is correct and the right amount of funds is provided.

When presenting an instrument for recording, if you cannot have the instrument clocked in, have the person who is presenting the instrument sign a contemporaneous affidavit for your file indicating the date and time the instrument was presented to the clerk. This affidavit should be kept in your file - it is important evidence of the date and time of presentation and may have some weight in the event of a claim on the file. Section 317 of the Real Property Law provides as follows:

"Every instrument, entitled to be recorded, must be recorded by the recording officer in the order and as of the time of its delivery to him therefor, and is considered recorded from the time of such delivery."

The key is "entitled to be recorded." If the instrument is error-free, notwithstanding an erroneous rejection, the instrument ought to be considered recorded as of the original delivery date.

I would like to keep track of instruments that you believe have been wrongly rejected. Please send me a complete copy of the instrument, the rejection slip, and a note as to why you think the instrument was wrongly rejected.