Can a New York county clerk reject a deed or mortgage for recording just because it doesn't follow the short-form template in Real Property Law § 258?

Plain-English summary

Nassau County's clerk's office was refusing to record deeds and mortgages that did not contain the specific information laid out in the short-form templates in Real Property Law § 258 (the Schedule A through R forms for deeds, mortgages, and related conveyancing instruments). The county attorney asked the AG whether that was permitted.

The AG said no. Section 258 is by its own terms permissive: it states that "the use of the following forms of instruments for the conveyance and mortgage of real property is lawful, but this section does not prevent or invalidate the use of other forms." The statute offers short forms as a convenience, not as a mandate. It contains no language conditioning recording on the use of those forms, and it does not authorize the clerk to reject instruments that depart from them.

Other Real Property Law provisions also point toward a ministerial duty. Section 291 directs the clerk to record instruments offered for recording when accompanied by the proper fee. Article 12 of the County Law does not authorize the clerk to evaluate documents presented for filing to determine their substantive validity. The AG noted Op Atty Gen (Inf) No. 96-39, which had concluded the county clerk's duty under the Real Property Law is to accept a deed for filing if it is in recordable form, and the clerk is neither authorized nor required to verify the accuracy or veracity of a deed.

The opinion adds that conveyancing and recording requirements are matters of statewide concern, not subject to local variation. Applying different requirements county-by-county would be inappropriate. The clerk must accept any instrument that is properly acknowledged and executed for recording, even if it does not match the short-form templates.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does "properly acknowledged and executed" mean?

A deed or mortgage is properly executed when signed by the necessary parties consistent with statutory and common-law requirements. It is properly acknowledged when the signer's signature is verified before a notary or other authorized officer (typically with a separate acknowledgment certificate). The Real Property Law sets out detailed requirements for acknowledgments in §§ 298 through 309. The county clerk's recording role assumes those formalities have been satisfied.

What if the clerk thinks the deed is fraudulent or inaccurate?

The clerk's role is ministerial. Under Op Atty Gen (Inf) No. 96-39, the clerk is not authorized or required to verify the accuracy or veracity of a deed. If a deed is otherwise in recordable form (properly acknowledged and executed, with the required fee), it must be accepted. Concerns about fraud or inaccuracy are matters for the courts in actions to quiet title or for criminal authorities investigating filings of false records.

Why does the AG emphasize that conveyancing rules are statewide?

Real property transactions cross county lines. A title insurer, a lender, or a buyer cannot reasonably comply with a patchwork of county-specific document content rules. The AG's earlier opinions (1960 Op Atty Gen (Inf) 115 and Op Atty Gen (Inf) No. 92-55) had already concluded that recording requirements are not subject to local law variation.

Are there any content elements the clerk can require?

Yes, but they come from statutes other than § 258. For example, statutory fees must accompany the instrument under RPL § 291. Federal and state taxes (transfer tax, mortgage tax) must be paid as applicable, with their own forms. The clerk can require those payments and forms. What the clerk cannot do is impose form-specific content requirements not grounded in the Real Property Law.

What does "short form" mean in this context?

The § 258 schedules are concise drafting templates the Legislature blessed for common types of conveyances. They are an alternative to longer drafted instruments. Use of a short form provides certain benefits (statutory clarity, predictable interpretation) but is never required.

Background and statutory framework

Real Property Law § 258 is titled "Short forms of deeds and mortgages" and provides that the use of the listed forms (Schedules A through R) is lawful, but does not prevent or invalidate the use of other forms. The statute expressly permits parties to use any conveyancing or mortgage instrument they choose.

Real Property Law § 291 directs the clerk to record instruments offered for recording when accompanied by the proper fee.

County Law Article 12 governs county clerks. It does not authorize the clerk to evaluate the substantive validity of documents presented for recording.

Op Atty Gen (Inf) No. 96-39 (clerk's duty is to accept a deed for filing if in recordable form; not authorized or required to verify accuracy). 1960 Op Atty Gen (Inf) 115; Op Atty Gen (Inf) No. 92-55 (conveyancing and recording requirements are matters of state concern, not subject to local law variation).

Citations

• Real Property Law § 258 (short forms of deeds and mortgages; expressly non-exclusive).
• Real Property Law § 291 (clerk to record instruments when accompanied by proper fee).
• County Law Article 12 (county clerks' duties).
• Op Atty Gen (Inf) No. 96-39 (ministerial nature of clerk's recording duty).
• 1960 Op Atty Gen (Inf) 115; Op Atty Gen (Inf) No. 92-55 (recording requirements not subject to local law variation).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-15_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

REAL PROPERTY LAW §§ 258, 291; COUNTY LAW ART 12.

The county clerk must accept for recording any instrument
that is properly acknowledged and executed. Real Property Law
§ 258, by its own terms, sets forth acceptable short forms and
allows for the use of other forms of instruments. It contains no
language requiring that certain information be presented in an
instrument before it is filed, nor does it authorize the clerk to
reject documents that do not contain specific information or
display the information in a particular form.

March 10, 1997

Owen B. Walsh, Esq. Informal Opinion
County Attorney No. 97-15
County of Nassau

Nassau County Executive Building

One West Street

Mineola, NY 11501-4820

Dear Mr. Walsh:

You have asked whether the county clerk must record any
instrument properly executed and acknowledged that is presented
for recording or whether the county clerk may refuse to record
instruments that do not contain the information detailed in Real
Property Law § 258. That section is entitled "Short forms of
deeds and mortgages" and states that

the use of the following forms of instruments
for the conveyance and mortgage of real

property is lawful, but this section does not
prevent or invalidate the use of other forms

The introduction is followed by Schedules A through R, which
set forth forms for various instruments. You have advised us
that the county clerk's office declines to record instruments
that do not contain the information detailed in the forms that
appear in section 258.

We conclude that the clerk must accept for recording any
instrument that is properly acknowledged and executed. Section
258, by its own terms, sets forth acceptable short forms and
allows for the use of other forms of instruments. It contains no
language requiring that certain information be presented in an
instrument before it is filed, nor does it authorize the clerk to
reject documents that do not contain specific information or
display the information in a particular form.

Similarly, other provisions of the Real Property Law direct
the clerk to file instruments offered for recording when
accompanied by the proper fee. See, e.g., § 291. Article 12 of
the County Law does not authorize the county clerk to evaluate
documents presented for filing to determine their validity. In a
prior opinion, we concluded that the county clerk's duty under
the Real Property Law is to accept a deed for filing if it is
submitted in recordable form and that the clerk is not authorized
or required to ascertain the accuracy or veracity of a deed. Op
Atty Gen (Inf) No. 96-39. Moreover, as we previously have
concluded, conveyancing and recording requirements are matters of
State concern that are not subject to regulation by local law.
1960 Op Atty Gen (Inf) 115; Op Atty Gen (Inf) No. 92-55.
Application of varying local standards would not be appropriate.

Thus, we conclude that the county clerk must accept for
recording any instrument that is properly acknowledged and
executed, and may not refuse to record instruments that do not
contain the information detailed in Real Property Law § 258.

The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.

Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General