Thursday, May 11, 2017

MERS - recorder of deeds

MERS et al. v. Recorder of Deeds, et al. – Cmwlth. Court (en banc) – May 4, 2017

Preliminary objections of MERS sustained in action by various recorders of deeds to collect filing fees under 21 P.S. 351 (Failure to record conveyance)

“[W]e agree with the court’s conclusion in Montgomery County that, “Section 351 does not issue a blanket command that all conveyances must be recorded; it states that a conveyance ‘shall be recorded’ in the appropriate place, or else the party risks losing his interest in the property to a bona fide purchaser.” 795 F.3d at 377. While the plain language of Section 351 “informs property owners of what steps they must take in order to safeguard their interests [it] does not in any way state or imply that failure to record constitutes [an enforceable] violation of the statute . . . .” 795 F.3d at 377-78.  Our conclusion is grounded in the clear language of the statute, and it also is supported by a body of case law interpreting Pennsylvania recording laws that specifically addresses the purpose of those statutes and the effect of a failure to record an interest in land.

“[We are not called upon to evaluate how MERS impacts various constituencies or to adjudicate whether MERS is good or bad.” 795 F.3d at 379. To the extent that public policy matters are implicated in this appeal, there is no question that matters of public policy are solely committed to the legislature, and not this Court.”

Dissent (Brobson, McCullough, Covey)
Although I may ultimately adopt the majority’s view on the merits, a whiff of doubt remains. I, therefore, would prefer to see this matter mature past the pleadings stage before rendering a final judgment on either the proper
construction of Section 1 of the Act of May 12, 1925, P.L. 613, as amended, 21 P.S. § 351, or the authority of the Recorders to maintain their declaratory judgment actions.

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