HOUSE BILL NO. 649
AN ACT TO AMEND TITLE 9 OF THE DELAWARE CODE RELATING TO RECORDATION OF DOCUMENTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Section 9605, Chapter 96, Title 9 of the Delaware Code by deleting that section in its entirety and substituting therein the following:
"59605. Recordation of Instruments.
(a) Each Recorder shall record within a reasonable time, deeds, indentures, letters of attorney relating to land, mortgages, releases of lien of mortgages, leases, releases, assignments, certificates of incorporation and amendments thereof, conditional sales and leases of railroad and railway equipment and rolling stock, oaths of office, plots and descriptions, returns and plots of the board of Port Wardens of the City of Wilmington of new wharf lines, appointments of deputy registers of wills, certificates of commissioners and agreements of owners bounding and marking lands, petitions and orders for sheriffs' deeds, all instruments authorized or directed by law, to be recorded or lodged by the Recorder of Deeds, including certificates of discharge regularly issued by the United States Army, Air Force, Navy, Coast Guard or Marine Corps. The Recorder shall forthwith make a proper note of the same in the indices. No fee shall be charged for recording any certificate of discharge as mentioned in this subsection.
(b) No Recorder shall knowingly record or receive for filing any contract, mortgage, lease, deed or conveyance or any other indenture or agreement affecting real property, which contains any promise, covenant or restriction which limits, restrains, prohibits or otherwise provides against the sale, gift, transfer, assignment, conveyance, ownership, lease, rental, use or occupancy of real property to or by any person because of race, color, creed, sex, national origin or ancestry.
(c) For the purpose of this Chapter, and this section, any reference in any section of this chapter to the recordation of any document or instrument in books or volumes shall not prohibit the Recorder from causing the instrument to be preserved for examination or reproduction by means of any archival filming or storage process approved by the Delaware State Archivist. The Recorder shall be authorized to determine which records shall be available in book form or only in photographic or electronic form.
(d) No Recorder shall accept for recording any deed or other instrument purporting to convey title to real estate unless and until he/she has first received an affidavit of residence and gain in the form in subsection (e) hereinafter; provided, however, that he/she may accept for recording any such deed or other such instrument purporting to convey title to real estate without first receiving such an affidavit of residence and gain if the transaction or instrument is one of those transactions or instruments exempted from the definition of "document" for the purposes of imposition of the realty transfer tax in §5401(1) of Title 30. The Recorder of New Castle County may delegate this duty to another county department with the consent of the County Executive.
(e) The form to be used in making such affidavit of residence and gain shall be separately made available by each Recorder and such form shall require information and authorization from, by or on behalf of the seller, to the extent such information is known to the person making the affidavit; provided, however, that if the seller is a Delaware resident or a corporation domiciled in Delaware, it shall be necessary only to so state on the affidavit of residence and gain or any other affidavit provided by the Recorder for this purpose:
(1) An adequate description of the seller, including name, residence, address, taxpayer Identification number and principal place of business as appropriate.
(2) Whether or not the seller is a nonresident individual, nonresident estate, nonresident trust or nonresident partner, as such terms are defined in Chapter 11 of Title 30, or, if the seller is a corporation, whether or not it is a foreign corporation.
(3) The actual consideration received by the seller and whether or not he had a gain on the sale of real estate to which title is purporting to be conveyed.
(4) Within such affidavit the seller shall also authorize the Division of Revenue or such other appropriate state agency as may be designated to obtain any appropriate or necessary federal income tax forms, including their attached schedules or other attachments, and any other related papers filed by such seller which relate solely to the said real estate to which title is purported to be conveyed by the deed or instrument being recorded.
(f) The Recorder shall not accept for recordation any deed or other Instrument affecting real property unless the deed or other instrument contains thereon in a conspicuous place the County Tax Assessment parcel identification number of the parcel or parcels affected. In all cases where the affected parcel was just created by subdivision, the number of the parcel which was subdivided shall be identified and the number of the newly created parcel or parcels shall be listed, if available. In cases where the affected parcel was just created by the combining of separate parcels, the number of the parcels that were combined shall be identified. The number or numbers of the newly created parcel or parcels shall be listed, if available.
(g) The Recorder shall be authorized to issue regulations concerning the format and size of instruments to be accepted for recordation including, but not limited to the map scale, type size, paper size, margins and requirements for open areas within an instrument to assure that the documents is in a form proper for micrographic or electronic reproduction. The Recorder may require that, for any instrument presented that does not comply with the regulations or that is not otherwise in a form acceptable for micrographic reproduction, a typed statement be attached and made a part of the document stating the kind of instrument, the date, the parties to the instrument, a description of the property and any other pertinent data necessary to allow the instrument to be microfilmed.
(h) The Recorder of Deeds shall not accept for recordation any deed or other instrument affecting real property unless the deed or other instrument contains the words "prepared by followed by the name and address of the person who drafted or prepared the deed or other instrument for recording. The information required by this subsection shall appear on the first page of the instrument to be recorded.
(i) The Recorder of Deeds for Kent County shall not accept for recording any deed or other instrument purporting to convey title to real estate until he has received payment of all State and municipal realty transfer tax due on the transfer, with the exception of the City of Dover realty transfer tax; provided, however, that any' municipality which has Imposed a realty transfer tax may continue to collect such tax upon written notification to the Recorder of such election."
Approved July 10, 1990.