Fayette County Clerk > Land Records

General Index

Acknowledgements Required for Deeds	Electronic Signatures	Instruments in a Foreign Language
Insurance Proceeds File Search	Legal Process Tax	Missing or Lost Assignments
Phoney or Illegal Liens	Preporation Statement	Real Estate Transfer Tax
Recording a Certified Copy	Transfer Tax

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Acknowledgements Required for Deeds - In State, Out of State and Foreign

The statutory requirements for acknowledgements are as follows:

Deeds executed in the state (KRS 382.130)

Deeds executed in this state may be admitted to record:

On the acknowledgment, before the proper clerk, by the party making the deed
By the proof of two subscribing witnesses, or by the proof of one subscribing witness, who also proves the attestation of the other
By the proof of two witnesses that the subscribing witnesses are both dead; and also like proof of the signature of one of them and of the grantor
By like proof that both of the subscribing witnesses are out of the state, or that one is so absent and the other is dead; and also like proof of the signature of one of the witnesses and of the grantor; or
On the certificate of a county clerk of this state, or any notary public, that the deed has been acknowledged before him by the party making the deed or proved before him in the manner required by subsection (2), (3) or (4)

Signing by making an "X" or a mark.

The following OAG's opinion addresses this issue, as well as KRS 382.130(5).

OAG 68-438. A grantor, a husband, may sign a deed by making his mark before a notary public, and his acknowledgment of his execution of the deed may be validly taken before the notary, no witnesses to the "mark" signature being necessary; the acknowledgment certificate signed by the notary is sufficient.

Deeds executed out of state (KRS 382.140)

Deeds executed out of this state and within the United States or any of its dependencies may be admitted to record when certified, under the seal of his office or court, by a judge, clerk or deputy clerk of a court, or by a notary public, mayor of a city, secretary of state, commissioner authorized to take acknowledgement of deeds or justice of the peace, to have been acknowledged or proved before him in the manner required by KRS 382.130.

OAG 63-1062. The seal of a notary public must be affixed to a certificate of acknowledgment of a deed executed out of the state in order for the deed to be admitted to record, but the seal is not essential to the validity of acknowledgments of other deeds.

Original signature - the word executed means signed. Black's Law Dictionary -

"Execute. To complete; to make; to sign; to perform... To perform all necessary formalities, as to make and sign a contract."

DEEDS EXECUTED IN A FOREIGN COUNTRY (KRS 382.150)

Deeds not executed within the United States or any of its dependencies, may be admitted to record when certified, under his seal of office, by any foreign minister, officer in the consular service of the United States, secretary of legation of the United States, or by the secretary of foreign affairs or a notary public of the nation in which the acknowledgment is made, or by the judge or clerk of a superior court of the nation where the deed is executed, to have been acknowledged or proven before him in the manner prescribed by law.

Fee is $2.00 for county clerk or deputy acknowledging an instrument KRS 64.012

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Electronic Signatures

It is important to understand that the UNIFORM ELECTRONIC TRANSACTIONS ACT specifically EXCLUDES THE FOLLOWING:

Wills, Codicils, or Testamentary Trusts
Conveyance of any interest in real property
The creation or transfer of any negotiable instrument establishing title or an interest in title

As it relates to Land Records, the word conveyance includes deed, mortgage, assignment, release, encumbrance, land use restriction, plat etc. All of these documents convey an interest in real property.

As it relates to a Motor Vehicle Title, documents that create or transfer a title cannot be signed electronically.

KRS 369.103(2)(a)(c)(d)

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Instrument Executed in a Foreign Language

KRS 382.180

Documents presented in a language other than English may be filed if the person producing the document offers a correct English translation of the document. The translation is filed, along with the document, in the appropriate book.

If the document was executed in a foreign country, the acknowledgement must comply with KRS 382.150.

If the document was executed in a foreign country, the acknowledgement must comply with KRS 382.150 which states:

Deeds not executed within the United States or any of its dependencies, may be admitted to record when certified, under his seal of office, by any foreign minister, officer in the consular service of the United States, secretary of legation of the United States, or by the secretary of foreign affairs or a notary public of the nation in which the acknowledgment is made, or by the judge or clerk of a superior court of the nation where the deed is executed, to have been acknowledged or proven before him in the manner prescribed by law.

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Insurance Proceeds File Search

KRS 304.20-200 to KRS 304.20-250

Notification of insurer of existence of lien

If requested by an insurer the county clerk must provide information on the existence of any certified delinquent tax liens and the amount of the liens within 15 days of the request. If the clerk fails to respond within the time period the result is the liens are considered to be terminated. The statute says, "The insurer may rely conclusively upon the amount of the taxes due as set forth in such notice of lien in making any payments of proceeds to any person".

The request must be made in person, sent by registered or certified mail.

The request must include the following:

The name of the property owner
An address, legal description or provide the means for the clerk's office to sufficiently identify the property.
Return address is required

The clerk is required to search and report any certified delinquent tax bills. This search does not include a search of any current tax bill. The KBA has issued the following opinion:

KBA U-30 (March 1981). A county clerk who complies with KRS 304.20-210 and issues a statement indicating the amount of all liens on a piece of property is engaged in the unauthorized practice of law if he examines records pertaining to city taxes, current tax bills in the hands of the sheriff, or any tax bills other than those that have been certified to him as delinquent.

Click for Fee Schedule

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Legal Process Tax

KRS 142.010

This tax must be collected prior to the recording of the following land record documents as part of the filing fee:

A tax of three dollars ($3.00) on each power of attorney to convey real or personal property;
A tax of three dollars ($3.00) on each mortgage, financing statement, or security agreement;
A tax of three dollars ($3.00) on each conveyance of real property; and
A tax of three dollars ($3.00) on each lien or conveyance of coal, oil, gas, or other mineral right or privilege.

Relating to real property, this tax is to be collected when a conveyance occurs.
Included are the following: deeds, mortgages, contract for deed, land contracts, mineral lease, real estate lease, assignment of rents, easement, power of attorney, property bond, original fixture filing.

Legal process tax is NOT collected on documents such as: assignments, releases, easement releases, deed of restriction, land use restriction, plat, master mortgage, real estate options, power of attorney revocation. These are not all-inclusive lists, but information gathered from attorney general opinions.

Legal process tax is not paid on a deed of correction, because the fee was paid in the initial recording.

EXEMPTION

Documents by the United States Government, Commonwealth of Kentucky or any agency of the Commonwealth, such as local governments or other agencies, are exempt from this tax, per Revenue Circular 73C203, dated 7-1-86.

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Missing or Lost Assignments or Releases

For many years County Clerks have been receiving Affidavits of Missing or Lost Instruments associated Assignments and Releases. The customer's argument has been the Release cannot be filed because they cannot show that they are the legal holder of the mortgage. New language in KRS 382.365 provides statutory assistance for these customers. The statute has always given the property owner or a party with interest the instruction to file a proceeding in District or Circuit Court, the new language is much more specific in the necessary steps that must be taken. It also directs the master commissioner to execute and file a document with the county clerk for assignments or releases.

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Phony or Illegal Liens

KRS 434.155

This statute does not give the County Clerk's office any right to refuse the lien as long as the lien has the correct filing information.

In other words, if the document meets the recording requirements, the clerk's office is obligated to record the document.

KRS CHAPTER 434.155

(1) A person is guilty of filing an illegal lien when he files a document or lien that he knows or should have known was forged, groundless, contained a material misstatement, or was a false claim. It shall be an affirmative defense that any material misstatement was not intentional.

(2) Filing an illegal lien is a Class D felony for the first offense, a Class C felony for any second offense, and a Class B felony for any subsequent offense

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Preparation Statement

AKA Scrivners Statement, KRS 382.335

Provides that virtually all documents filed in land records contain the author's name, address and signature.

Example:

Prepared by: ______________________

John B. Jones
200 E. Main St.
Lexington, KY 40507

The statue provides that the author's signature can be a facsimile on the statement.
This means that a stamp of a computerized signature is acceptable on the preparation statement.

Documents that have a "Drafted by" statement or " Reviewed by" statement do not meed the requirements of a "Preparation Statement"

The stature requires that the preparation statement must be on the document prior to any attachments or exhibits.

Some documents do not require preparation statements. Examples of some are: Power of Attorney, corporate record documents (such as articles of incorporation, assumed names and partnership agreements), government liens, affidavits and wills.

This act does not apply to documents executed prior to July 1, 1962.

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Real Estate Transfer Tax

KRS 142.050 AKA Deed Transfer Tax

This statute requires the collection by the County Clerk of a tax on each deed, regardless of where made, executed or delivered, by which any real property or interest therein is conveyed vested, granted bargained, sold, transferred or assigned.

The tax is imposed upon the value of the full consideration listed in the deed that is said to paid, including the amount of any lien or liens thereon. This tax is imposed upon the grantor listed in the deed, per KRS 142.050 (2).

The tax is calculated at the rate of .50 per $500 of valuation or any fraction thereof.

The exemptions are listed in KRS 142.050, section 7. This section does not apply to any deeds executed prior to March 28, 1968, even if they are presented for recording after that date, OAG 68-414.

Transfer to any of the governmental units listed in KRS 142.050 (7)(B) are exempt only in the case of gifts or nominal consideration, OAG 93-73.

In the event of a deed in which the property lies in two counties, the tax should be paid on the entire value of the land in the first county of filing. (OAG68-168). The county with the greater amount of land should be the first county of filing OAG 84-48. When presenting the deed for filing in the other county, evidence should be on the deed, or attached to it, showing the tax was collected in the other county.

Also see: Transfer Tax

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Recording Cerified Copy

A 2005 statutory change in KRS 382.110 "Recording of deeds and mortgages -- Place of recording -- Use of certified copies of original records -- Contents of deed" allows county clerks to record certified copies of documents if they meet the following conditions.

An authentic photocopy of any original record may be certified, as a true, complete, unaltered copy of the original record on file by the official public custodian of the record.
A certified copy of a document certified by the official public custodian of that document may be submitted for filing in any other filing officer's jurisdiction as though it were the original record.. However, no county clerk or deputy county clerk shall accept for filing any original document or certified copy of any document unless the original document and its certified copy conforms to all statutory requirements for filing the document under KRS Chapter 382.
The provisions of this subsection shall apply only to a record generated and filed in Kentucky, and only if the certified copy thereof is to be utilized in Kentucky.
If the record is a foreign record or a Kentucky record to be filed or utilized in a foreign jurisdiction, then this subsection shall not apply and applicable federal, Kentucky, or foreign law shall apply.

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Transfer Tax

KRS 142.050 Real Estate Transfer Tax

Transfer tax is collected on the actual consideration paid or to be paid in the deed, unless it is a gift.
If the deed is a gift or indicates nominal consideration, the tax is paid on the estimated price the property would bring in an open market.
The transfer tax is imposed upon the grantor
The tax is computed at the rate of $.50 for each $500 of value or fraction thereof.
A deed cannot be recorded unless the real estate transfer tax has been collected.
The tax required to be levied by this section shall be collected only once on each transaction and in the county in which the property is conveyed, or the greater part of the property is located. KRS 382.110(1).

KRS 142.050
(1) As used in this section, unless the context otherwise requires:
(a) "Deed" means any document, instrument, or writing other than a will and other than a lease or easement, regardless of where made, executed, or delivered, by which any real property in Kentucky, or any interest therein, is conveyed, vested, granted, bargained, sold, transferred, or assigned.
(b) "Value" means:
1. In the case of any deed not a gift, the amount of the full actual consideration therefor, paid or to be paid, including the amount of any lien or liens thereon; and
2. In the case of a gift, or any deed with nominal consideration or without stated consideration, the estimated price the property would bring in an open market and under the then prevailing market conditions in a sale between a willing seller and a willing buyer, both conversant with the property and with prevailing general price levels.
(2) A tax upon the grantor named in the deed shall be imposed at the rate of fifty cents ($0.50) for each $500 of value or fraction thereof, which value is declared in the deed upon the privilege of transferring title to real property.
(3) (a) If any deed evidencing a transfer of title subject to the tax herein imposed is offered for recordation, the county clerk shall ascertain and compute the amount of the tax due thereon and shall collect the amount as prerequisite to acceptance of the deed for recordation.
(b) The amount of tax shall be computed on the basis of the value of the transferred property as set forth in the deed.
(c) The tax required to be levied by this section shall be collected only once on each transaction and in the county in which the deed is required to be recorded by KRS 382.110(1).
(4) The county clerk shall collect the amount due and certify the date of payment and the amount of collection on the deed. The county clerk shall retain five percent (5%) as his fee for collection and remit the balance every three (3) months to the county treasurer, who shall deposit the money in the county general fund.

(5) The Revenue Cabinet may prescribe regulations necessary to carry out the purposes of this section.
(6) Any county clerk who willfully shall record any deed upon which a tax is imposed by this section without collecting the proper amount of tax and certifying the date and amount of collection on the deed as required by this section based on the declared value indicated in the affidavit appended to the deed shall, upon conviction, be fined $50 for each offense.
(7) The tax imposed by this section shall not apply to a transfer of title:
(a) Recorded prior to March 27, 1968;
(b) To, in the event of a deed of gift or deed with nominal consideration, or from the United States of America, this state, any city or county within this state, or any instrumentality, agency, or subdivision hereof;
(c) Solely in order to provide or release security for a debt or obligation;
(d) Which confirms or corrects a deed previously recorded;
(e) Between husband and wife, or between former spouses as part of a divorce proceeding;
(f) On sale for delinquent taxes or assessments;
(g) On partition;
(h) Pursuant to:
1. Merger or consolidation between and among corporations, partnerships, including registered limited liability partnerships, limited partnerships, or limited liability companies; or
2. The conversion of a general partnership, including a registered limited liability partnership, or a limited partnership into a limited liability company;
(i) Between a subsidiary corporation and its parent corporation for no consideration, nominal consideration, or in sole consideration of the cancellation or surrender of either corporation's stock;
(j) Under a foreclosure proceeding;
(k) Between a person and a corporation, general partnership, limited partnership, registered limited liability partnership, or limited liability company in an amount equal to the portion of the value of the real property transferred that represents the proportionate interest of the transferor of the property in the entity to which the property was transferred, if the transfer was for nominal consideration;
(l) Between parent and child or grandparent and grandchild, with only nominal consideration therefor;
(m) By a corporation, general partnership, limited partnership, registered limited liability partnership, or limited liability company to a person as owner or shareholder of the entity, upon dissolution of the entity, in an amount equal to the portion of the value of the real property transferred that represents the proportionate interest of the person to whom the property was transferred, if the transfer was for nominal consideration:

(n) Between a trustee and a successor trustee; and
(o) Between a limited liability company and any of its members.
(8) The tax imposed by subsection (2) of this section shall not apply to transfers to a trustee, to be held in trust, or from a trustee to a beneficiary of the trust if:
(a) The grantor is the sole beneficiary of the trust;
(b) The grantor is a beneficiary of the trust and a direct transfer from the grantor of the trust to all other individual beneficiaries of the trust would have qualified for an exemption from the tax pursuant to one (1) of the provisions of subsection (7) of this section; or
(c) A direct transfer from the grantor of the trust to all other individual beneficiaries of the trust would have qualified for an exemption from the tax pursuant to one (1) of the provisions of subsection (7) of this section.
(9) As used in this section, "trust" shall have the same definition as contained in KRS 386.800.

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