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City of East Orange v. Essex County Register of Deeds & Mortgages

July 30, 2003

THE CITY OF EAST ORANGE, PLAINTIFF-APPELLANT,
v.
ESSEX COUNTY REGISTER OF DEEDS & MORTGAGES, CAROL A. GRAVES, ESSEX COUNTY REGISTER, IN HER OFFICIAL CAPACITY AND COUNTY OF ESSEX, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5709-02.

Before Judges Skillman, Axelrad and Fuentes.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2003

The issue presented by this appeal is whether the fee for recording a certificate of cancellation of a tax sale certificate is $15 or $3. We conclude that the statutorily mandated fee for this service is $15.

Plaintiff City of East Orange has paid the higher fee (formerly $8)*fn1 to the defendant Essex County Register of Deeds and Mortgages since 1988. However, East Orange's newly appointed tax collector notified the Register in September 2001 that she had been overcharging for recording certificates of cancellation of tax certificates and that the correct fee was the same fee established for the filing of tax certificates, which is $3. Thereafter, the Register received a legal opinion from the Essex County Counsel, which concluded that the correct fee was the higher fee established for the recording of mortgages.

Plaintiff then brought this action in lieu of prerogative writs to enjoin the Register and Essex County from charging the higher fee and to recover alleged overpayments of $4760 plaintiff had made since 1988. The case was brought before the trial court by an order to show cause.

The Register filed an answering certification which stated that she and her predecessors had interpreted the applicable statutes to require a municipality to pay the same fee for recording a certificate of cancellation of a tax certificate as for recording the cancellation of a mortgage. The Register's certification also indicated that she had conducted a survey of the other county clerks and registers and that thirteen of the eighteen counties which responded, including Essex, charged the higher $15 fee.

The trial court concluded in a brief oral opinion that the defendants' position was correct and entered judgment in their favor.

The procedures for the cancellation of a tax sale certificate held by a municipality are set forth in N.J.S.A. 54:5-111.1 to -111.4. N.J.S.A. 54:5-111.1 provides in pertinent part:

When a municipality has or shall have acquired a lien, against any lands in this State,... by tax, assessment or sale for taxes,... and has or shall have become the purchaser at a tax sale, held to enforce the collection of such lien, and has or shall have become the holder of the certificate of such tax sale, and has or shall have acquired said lands... and the equity of redemption thereof, by purchase or otherwise, without having taken or completed proceedings to enforce such lien or to foreclose the right of redemption, the governing body of the municipality, may, by resolution, authorize and direct such officer or officers of the municipality, as shall be designated in the resolution, to execute a certificate of cancellation of the lien and of the certificate of tax sale which certificate shall recite the acquisition in lieu of enforcement and foreclosure.

N.J.S.A. 54:5-111.3 provides:

Such certificate of cancellation may be filed or recorded in the same manner and with the same effect as though it were a ...


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