December 2016 Updates to North Carolina
Guidebook for Registers of Deeds, 10th Edition
is December 2016 update comprises replacement pages for 16 sections
within the 4 chapters of the manual as well as for Appendix 1 and 2. Also
included are replacement pages for the Table of Contents noting the sec-
tions that have been updated. Lowercase letters are attached to page num-
bers when a section update extends beyond the original pagination—for
example, Section 1.6.3.2 is now paginated at 29 and 29a—with blank pages
inserted as needed to retain the placement of facing pages.
To update the 2013 loose-leaf publication, remove the pages from the
binder that correspond to the pages in this update and insert in their place
the printed, trimmed, and hole-punched pages from this update. Page trim
edges and holes are marked for convenience. Pages have been formatted to
be printed on both sides of the page.
Updated sections, with their respective page numbers, are as follows:
Chapter 1
1.5.1 Maintaining an Oce ..................................20
1.6.3.2 Political Aliation .....................................29
1.6.3.3 Protected Speech ......................................30
1.9.2 Automation Enhancement and Preservation Fund .........42
Chapter 2
2.2.1.3 Birth Certicates .......................................59
Chapter 3
3.2.7.3 Common Forms of Satisfaction Instruments .............145
3.2.7.4 Adavits of Satisfaction ...............................146
3.2.10 False Lien Claims .....................................159
3.3.4.5.3 Assumed Name Certicate .............................175
3.3.4.5.9 Power of Attorney .....................................177
Chapter 4
4.1 Registers’ Role ........................................199
4.2 Capacity to Marry .....................................201
4.2.4 Gender ...............................................204
4.3.2 Application Form and Identity ..........................205
4.4.1 Marriage Ceremony ...................................209
Appendix 1. Fees
Recording Real Estate Instruments ................................217
UCC Records ...................................................217
Marriage Licenses ...............................................217
Other Records ..................................................217
Other Services ..................................................218
Appendix 2. Receipt Allocations
Deeds of Trust and Mortgages ....................................219
North Carolina
Guidebook for
Registers of Deeds
TENTH EDITION 2013
Updated December 2016
Charles Szypszak
The School of Government at the University of North Carolina at Chapel Hill works to improve the lives of
North Carolinians by engaging in practical scholarship that helps public ocials and citizens understand and
improve state and local government. Established in 1931 as the Institute of Government, the School provides
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also home to a nationally ranked Master of Public Administration program, the North Carolina Judicial College,
and specialized centers focused on community and economic development, information technology, and
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States, the School of Government oers up to 200 courses, webinars, and specialized conferences for more
than 12,000 public ocials each year. In addition, faculty members annually publish approximately 50 books,
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Visit sog.unc.edu or call 919.966.5381 for more information on the School’s courses, publications, programs,
and services.
Michael R. Smith, Dean
Thomas H. Thornburg, Senio r aSS ociat e De an
Frayda S. Bluestein, aSSoci ate Dean f or facult y Dev elopmen t
Johnny Burleson, aSSo ciate Dean for Dev elopmen t
Michael Vollmer, aSSo ciate Dea n for aDminiS tr at ion
Linda H. Weiner, aSSociate Dea n for operatio nS
Janet Holston, Direc tor of Strategy a nD inn ovat ion
FACULT Y
© 2013, 2016
School of Government
The University of North Carolina at Chapel Hill
Use of this publication for commercial purposes or without acknowledgment of its source is prohibited. Reproducing,
distributing, or otherwise making available to a non-purchaser the entire publication, or a substantial portion of it,
without express permission, is prohibited.
Printed in the United States of America
20 19 18 17 16 2 3 4 5 6
ISBN 978-1-56011-732-2
This publication is printed on permanent, acid-free paper in compliance with the North Carolina General Statutes.
Printed on recycled paper
Inside cover art by Charles Szypszak
Whitney Afonso
Trey Allen
Gregory S. Allison
David N. Ammons
Ann M. Anderson
Maureen Berner
Mark F. Botts
Anita R. Brown-Graham
Peg Carlson
Leisha DeHart-Davis
Shea Riggsbee Denning
Sara DePasquale
James C. Drennan
Richard D. Ducker
Robert L. Farb
Norma Houston
Cheryl Daniels Howell
Jerey A. Hughes
Willow S. Jacobson
Robert P. Joyce
Diane M. Juras
Dona G. Lewandowski
Adam Lovelady
James M. Markham
Christopher B. McLaughlin
Kara A. Millonzi
Jill D. Moore
Jonathan Q. Morgan
Ricardo S. Morse
C. Tyler Mulligan
Kimberly L. Nelson
David W. Owens
LaToya B. Powell
William C. Rivenbark
Dale J. Roenigk
John Rubin
Jessica Smith
Meredith Smith
Carl W. Stenberg III
John B. Stephens
Charles Szypszak
Shannon H. Tufts
Vaughn Mamlin Upshaw
Aimee N. Wall
Jerey B. Welty
Richard B. Whisnant
Contents
Acknowledgments xi
Chapter 1
The Oce and Its Management
1.1 Nature of the Oce 3
1.2 History of the Oce 7
1.3 Election to Oce 10
1.3.1 Qualications 10
1.3.2 Election 11
1.3.3 Vacancy in the Oce 12
1.4 Taking Oce 14
1.4.1 Oath 14
1.4.2 Bond 15
1.4.3 Ocial Seal 16
1.4.4 Notarial Powers 16
1.4.5 Restrictions 18
1.5 Register’s Employment Conditions 19
1.5.1 Maintaining an Oce (Updated 12/2016) 20
1.5.2 Compensation and Benets 21
iii— Updated 12/2016
iv | Contents—Updated 12/2016
1.6 Assistants, Deputies, and Other Oce Personnel 23
1.6.1 Positions and Appointment 24
1.6.2 Authority 25
1.6.3 Legal Restrictions on Employment Decisions 27
1.6.3.1 General Statutory Prohibitions 27
1.6.3.2 Political Aliation (Updated 12/2016) 29
1.6.3.3 Protected Speech (Updated 12/2016) 30
1.6.3.4 Employee Rights to Compensation and Benets 31
1.7 Ocial Accountability and Ethics 32
1.8 Liability 34
1.8.1 Bond 35
1.8.2 Insurance 36
1.8.3 Personal Liability 37
1.8.4 Contract Liability 38
1.9 Budgets, Fees, and Accounting 39
1.9.1 Budget 39
1.9.2 Automation Enhancement and
Preservation Fund (Updated 12/2016) 42
1.9.3 Fees 44
1.9.4 Credit Cards and Electronic Payments 46
1.10 North Carolina Association of Registers of Deeds 46
Chapter 2
Public Records and Management
2.1 Record Keeping Generally 51
2.1.1 General Record Keeping Responsibility 52
2.1.2 Disaster Preparation 54
2.2 Access to Public Records 56
2.2.1 Primary Records 58
2.2.1.1 Real Estate 58
2.2.1.2 Marriage Licenses 59
2.2.1.3 Birth Certicates (Updated 12/2016) 59
2.2.1.4 Death Certicates 61
2.2.1.5 Military Discharges 62
Contents—Updated 12/2016 | v
2.2.2 Operational Records 64
2.2.3 Internal Oce Records 64
2.2.3.1 Personnel Records 65
2.2.3.2 Legal Materials 65
2.2.3.3 Trade Secrets 66
2.2.3.4 Records Involving Public Security 66
2.3 Copies of Unrestricted Records 66
2.3.1 Copies of Single Records 67
2.3.2 Copies of Databases 68
2.4 State Vital Records Processing 69
2.4.1 Delayed Birth Registration 69
2.4.2 Amendments to Birth and Death Records 71
2.4.3 Legitimations 72
2.4.4 Verication 73
2.5 Notary Commissions 73
2.6 Grave Removals 75
2.7 Records Disposal and Archiving 76
2.7.1 General Retention Practices 76
2.7.2 Retention Requirements 77
2.7.2.1 Primary Records 79
2.7.2.2 Operational Records: Indexes 79
2.7.2.3 Internal Oce Records 80
2.7.3 Required Duplication 81
2.7.4 Destruction 83
2.8 Internet Record Redaction 83
2.9 Archived Records No Longer Recorded 85
2.9.1 County Bonds 85
2.9.2 Farm Names 86
2.9.3 Jury Lists 86
2.9.4 Stray Livestock 86
2.9.5 Timber Marks 87
vi | Contents
Chapter 3
Real Estate Instrument Registration and Indexing
3.1 Conveyances and Instruments 93
3.1.1 Conveyances 93
3.1.2 Purpose of Registration 95
3.1.3 Basic Nature of Instruments 100
3.1.4 Closings 102
3.2 Registering Real Estate Instruments 104
3.2.1 General Duty to Register Instruments Presented 104
3.2.2 Instrument Format and Required Contents 107
3.2.2.1 Nonconforming Features 107
3.2.2.2 Drafter’s Name 108
3.2.2.3 Mailing Name and Address 108
3.2.2.4 Grantor Signatures 109
3.2.2.5 Real Estate Tax Certications 110
3.2.2.6 Parcel Identier Number 111
3.2.3 Originality Requirements 111
3.2.3.1 Instruments Requiring Verication 112
3.2.3.2 Previously Recorded Instruments 114
3.2.3.3 Certied Copies 116
3.2.3.4 Electronic Filings 117
3.2.3.5 Uncertied Copies or Instruments Not
Requiring Verication 120
3.2.4 Verication 121
3.2.4.1 Authorized Ocers 123
3.2.4.1.1 NORTH CAROLINA OFFICIALS 124
3.2.4.1.2 FEDERAL AND OUTOFSTATE OFFICIALS 126
3.2.4.2 Required Elements 127
3.2.4.2.1 OFFICER’S SIGNATURE 128
3.2.4.2.2 COMMISSION EXPIRATION DATE 129
3.2.4.2.3 OFFICIAL SEAL 129
3.2.5 Payment of Recording Fees 132
3.2.6 Payment of Excise Taxes 133
3.2.6.1 Payment of the State Excise Tax 133
3.2.6.1.1 TRANSFERS SUBJECT TO TAX AND
EXCEPTIONS 133
3.2.6.1.2 AMOUNT AND COLLECTION 137
3.2.6.1.3 REFUNDS AND CORRECTIONS 139
3.2.6.2 Separate County Excise Tax 141
Contents—Updated 12/2016 | vii
3.2.7 Satisfaction Instruments 142
3.2.7.1 Nature and Function 142
3.2.7.2 Historic Methods of Satisfaction 143
3.2.7.3 Common Forms of Satisfaction Instruments
(Updated 12/2016) 145
3.2.7.4 Adavits of Satisfaction (Updated 12/2016) 146
3.2.7.5 Deeds of Release 148
3.2.7.6 Documents of Rescission 149
3.2.7.7 Register Verication and Registration 149
3.2.8 Plats 150
3.2.8.1 Permissible Plat Size and Material 151
3.2.8.2 Certication Requirements and Exceptions 152
3.2.8.3 Plats Requiring Special Treatment 155
3.2.8.3.1 HIGHWAY RIGHTOFWAY PLANS 155
3.2.8.3.2 TRANSPORTATION CORRIDOR MAPS 157
3.2.8.3.3 CONDOMINIUM PLANS 157
3.2.8.3.4 ANNEXATION MAPS 158
3.2.9 Farmland District Notices 158
3.2.10 False Lien Claims (Updated 12/2016) 159
3.3 Indexing Real Estate Instruments 160
3.3.1 Purpose and Eect of Indexing 161
3.3.2 Prompt Indexing 163
3.3.3 Structure, Contents, and Order of Index 164
3.3.4 Identifying Parties 167
3.3.4.1 Representatives 170
3.3.4.2 Subsequent Instruments 171
3.3.4.3 Spelling Discrepancies 173
3.3.4.4 Other Names for Same Party 173
3.3.4.5 Parties to Common Instruments 174
3.3.4.5.1 AFFIXING MANUFACTURED HOME NOTICE 174
3.3.4.5.2 ASSIGNMENT OF SECURITY INSTRUMENT 174
3.3.4.5.3 ASSUMED NAME CERTIFICATE
(Updated 12/2016) 175
3.3.4.5.4 BANKRUPTCY NOTICE 175
3.3.4.5.5 DEED 175
3.3.4.5.6 DEED OF TRUST 176
3.3.4.5.7 FORECLOSURE DEED 176
3.3.4.5.8 PLATS 176
3.3.4.5.9 POWER OF ATTORNEY (Updated 12/2016) 177
3.3.4.5.10 REQUEST FOR NOTICE OF FORECLOSURE 177a
viii | Contents—Updated 12/2016
3.3.4.5.11 SATISFACTION OF SECURITY INSTRUMENT 178
3.3.4.5.12 SUBSTITUTION OF TRUSTEE 178
3.3.5 Format of Index Name Entries 178
3.3.5.1 Recognized Characters 179
3.3.5.2 Components of Human Names 180
3.3.5.2.1 LANGUAGE CONVENTION 180
3.3.5.2.2 HYPHENATED SURNAME 181
3.3.5.2.3 SURNAMES IN PARENTHESES 181
3.3.5.2.4 SUFFIXES 182
3.3.5.2.5 TITLES AND DEGREES 182
3.3.5.3 Status Field 182
3.3.5.4 Estate Names 183
3.3.5.5 Trust Names 183
3.3.6 Search Aids 183
3.3.6.1 Equivalencies 184
3.3.6.2 Auto Completion 184
3.3.6.3 Soundex 185
3.3.6.4 Political Divisions 186
3.3.6.5 Words Beginning with The, A, An 186
3.3.6.6 Results and Punctuation, Symbols, and Spaces 186
3.3.7 Corrections to Index 187
3.4 Uniform Commercial Code Filings 187
3.4.1 Registration 188
3.4.2 Indexing 190
3.4.3 Information Requests 190
3.5 Torrens Law 191
3.5.1 Background and Use 191
3.5.2 Title Registration 192
3.5.3 Deeds of Trust and Other Liens and Claims 193
3.5.4 Ownership Transfers 194
3.5.5 Indemnity 195
3.5.6 Release from Registration 196
viii | Contents
Contents—Updated 12/2016 | ix
Chapter 4
Marriage Licenses
4.1 Registers’ Role (Updated 12/2016) 199
4.2 Capacity to Marry (Updated 12/2016) 201
4.2.1 Marital Status 201
4.2.2 Age Requirements 202
4.2.3 Kinship 203
4.2.4 Gender (Updated 12/2016) 204
4.2.5 Competency 204
4.3 Issuance of Marriage Licenses 204
4.3.1 Marriage License 205
4.3.2 Application Form and Identity (Updated 12/2016) 205
4.3.3 Personal Appearance 206
4.3.4 Age 207
4.3.5 Social Security Numbers 207
4.3.6 Fees 208
4.3.7 Responsibility of the Register 208
4.4 Marriage Ceremony and Record 209
4.4.1 Marriage Ceremony (Updated 12/2016) 209
4.4.2 Marriage Records 211
4.5 Delayed Marriage Certicates 213
4.6 Changes in Applications and Licenses 214
Appendix 1
Fees 217
Recording Real Estate Instruments (Updated 12/2016) 217
UCC Records (Updated 12/2016) 217
Marriage Licenses (Updated 12/2016) 217
Other Records (Updated 12/2016) 218
Other Services (Updated 12/2016) 218
x | Contents—Updated 12/2016
Appendix 2
Receipt Allocations 219
Deeds and Other Instruments (except plats, deeds
of trust, and mortgages) 219
Deeds of Trust and Mortgages (Updated 12/2016) 219
Marriage Licenses 219
Other Fees Subject to Pension and Automation Funds 220
Index 221
Updates to this edition are available
online at www.sog.unc.edu/pubs/updates.
1— Updated 12/2016
Chapter 1
The Oce and Its Management
1.1 Nature of the Oce 3
1.2 History of the Oce 7
1.3 Election to Oce 10
1.3.1 Qualications 10
1.3.2 Election 11
1.3.3 Vacancy in the Oce 12
1.4 Taking Oce 14
1.4.1 Oath 14
1.4.2 Bond 15
1.4.3 Ocial Seal 16
1.4.4 Notarial Powers 16
1.4.5 Restrictions 18
1.5 Register’s Employment Conditions 19
1.5.1 Maintaining an Oce (Updated 12/2016) 20
1.5.2 Compensation and Benets 21
1.6 Assistants, Deputies, and Other Oce Personnel 23
1.6.1 Positions and Appointment 24
1.6.2 Authority 25
1.6.3 Legal Restrictions on Employment Decisions 27
1.6.3.1 General Statutory Prohibitions 27
1.6.3.2 Political Aliation (Updated 12/2016) 29
1.6.3.3 Protected Speech (Updated 12/2016) 30
1.6.3.4 Employee Rights to Compensation and Benets 31
1.7 Ocial Accountability and Ethics 32
1.8 Liability 34
1.8.1 Bond 35
1.8.2 Insurance 36
1.8.3 Personal Liability 37
1.8.4 Contract Liability 38
1.9 Budgets, Fees, and Accounting 39
1.9.1 Budget 39
1.9.2 Automation Enhancement and
Preservation Fund (Updated 12/2016) 42
1.9.3 Fees 44
1.9.4 Credit Cards and Electronic Payments 46
1.10 North Carolina Association of Registers of Deeds 46
2 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
the foreseeable future not only for making the complete records available
and for instrument recordings that the presenter wants to handle directly
but also for the many other services that registers provide and that require
a physical presence, such as applying for a marriage license.
e board of commissioners of each county is authorized to x the
hours and days of the week during which the oce of register of deeds
must be open, and the register or one or more deputies or assistants must
be present during those hours.
68
is may include the days the oce will
be closed because of a holiday. e board, under its authority to establish
oce hours, may establish a deadline for presenting instruments earlier
than the oce’s closing time to provide the register with time to process
recordings after receipt but before shutting the doors. For example, a board
might provide that no instrument will be accepted for recording after
4:30p.m. even though the oce remains open until 5:00 p.m.
If an emergency occurs that requires closing the oce temporarily
without the commissioners’ prior approval, the register should coordi-
nate the action with the county manager including possible commissioner
ratication of the action. Registers must adhere to these operating hours
for real estate registration and may not make exceptions if someone asks
the register to stay open late or to open during other times to accept an
instrument for recording. As discussed in Chapter 3, the order of record-
ing is important for legal rights, and no one should have an advantage over
those who believe the oce will adhere to its operating hours.
1.5.2 Compensation and Benets
e salaries of the register and the register’s employees are established by
the board of county commissioners under their statutory authority to set the
salaries of all county ocers.
69
Usually the salary is set according to a posi-
tion classication and pay plan and the register and the register’s employees
participate in the county’s expense allowance and benet programs.
To protect the elected register’s independence during a term, the board
of county commissioners is prohibited from reducing an incumbent reg-
ister’s salary during the term unless the register agrees to the reduction
or the Local Government Commission orders it because of a nancial
68. G.S. 161-8; G.S. 153A-94(b).
69. G.S. 153A-92.
Chapter 1: The Oce and Its Management —Updated 12/2016 | 21
emergency.
70
To reduce the future salary of a register running for re-
election, the commissioners must by resolution give notice of intent to
do so no later than fourteen days before the last day for ling notice of
candidacy for the oce.
71
Nothing requires the county to pay a newly elected register the same
salary as the former register. Naturally, a county may dierently compen-
sate based on experience. e statutes are not explicit about whether the
board of commissioners may pay a person appointed to complete an elected
register’s term during the remainder of the term a salary lower than that
of the register being replaced. e statute prohibiting a reduction except
under certain circumstances refers to “compensation paid to an ocer
elected by the people.”
72
e statute can be reasonably interpreted as refer
-
ring to the person actually elected, not to a person appointed to com-
plete a term, in which case there would be no statutory restriction against
adjusting the salary of the appointed person. e reasonableness of such an
adjustment would be further supported if the adjustment is based on how
the appointed person ts within an established salary schedule, or, if the
county does not have such a schedule, the adjustment is based on experi-
ence and other reasonable criteria. e adjustment should be made before
the appointed person undertakes the employment.
As described in Section 1.3.3 above, the board of commissioners may
grant the register of deeds a leave of absence without pay and appoint an
acting register of deeds.
73
e board of commissioners is authorized to establish policies concern-
ing workdays and holidays for county ocials and employees.
74
Usually this
is done through a county personnel ordinance. When the employees are
made subject to the county’s personnel ordinance, the register is not, of
course, free to establish a dierent policy regarding annual and sick leave.
Registers are likely to be eligible to participate in retirement plans oered
by or through the county. e General Assembly has authorized a pension
fund to supplement local government retirement benets to attract the
70. G.S. 153A-92(b)(1).
71. G.S. 153A-92(b)(2).
72. G.S. 153A-92(b)(1) (emphasis added).
73. G.S. 128-40.
74. G.S. 153A-94(a).
22 | North Carolina Guidebook for Registers of Deeds
taking other adverse action against an employee because the employee
pursued a legally protected right, such as making a workers’ compensation
claim or disclosing truthful information reasonably believed to concern a
violation of a law or regulation.
106
An employee who believes that a decision
has been made in violation of this law may le a written complaint with the
N.C. Commissioner of Labor alleging the violation. e complaint must be
led within 180 days of the alleged violation.
107
1.6.3.2 Political Aliation
Most registers are aliated with political parties and stand for election as
a party’s nominee. When a register resigns or otherwise leaves oce before
an election, by statute the former register’s party has the opportunity to
designate the successor for the rest of the term. Despite this conspicuous
role of party politics in a register’s accession to oce, in general the regis-
ter may not re or hire employees based on their party aliation. Public
employees have a constitutional right to their own political views, including
what party they wish to support, and their employment cannot be made
conditional on party aliation, with one exception that is unlikely to apply.
Party aliation may be considered only when it is required for eective
job performance. is would exist only if the register can establish that the
employee is eectively a spokesperson for the register’s policies and is privy
to condential information in this regard.
108
As the U.S. Supreme Court
explained, “the ultimate inquiry is not whether the label ‘policymaker’ or
‘condential’ ts a particular position; rather, the question is whether the
hiring authority can demonstrate that party aliation is an appropriate
requirement for the eective performance of the public oce involved.”
109
A register’s discretion to consider political aliation in making employ-
ment decisions can be informed by cases involving the sheri’s oce. e
North Carolina Supreme Court has held that a deputy sheri is not a
county employee for purposes of this state’s statute prohibiting employ-
ment decisions based on political activity.
110
In that case the deputy alleged
that she was not reappointed to her position because she did not contribute
106. G.S. 95-240 to -244.
107. G.S. 95-242(a).
108. Branti v. Finkel, 445 U.S. 507 (1980).
109. Id. at 518.
110. Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016)
Chapter 1: The Oce and Its Management —Updated 12/2016 | 29
to the sheri’s reelection campaign. e court said that under state law a
sheri “has singular authority over his or her deputies” and is considered
the employer even though the county provides the funds for the employ-
ment. e sheri’s authority includes the exclusive statutory right to hire
and re employees in the sheri’s oce, authority also given to a register of
deeds under the same statute. e court also said that sheris are entitled
to expect loyalty from their deputies, who are entrusted with condences
and may act in their sheris’ names and with their sheris’ authority.
111
e state supreme court noted with approval a North Carolina Court of
Appeals case in which the court held that a register of deeds had the same
employment authority as a sheri and was entitled to the same loyalties.
e court of appeals held that a register could “without violating the United
States and North Carolina Constitutions” dismiss his second-in-command
when she announced her plan to run against the register.
112
erefore,
the statute prohibiting certain kinds of political inuence
113
was deemed
inapplicable. Accordingly, based on these recent cases, a register of deeds
may when making employment decisions consider a deputy’s or assistant’s
political activity that is related to the oce, at least to the extent that the
register’s deputy or assistant is similar in relationship to the register as a
sheri’s deputy is to the sheri.
1.6.3.3 Protected Speech
Register assistants’ and deputies’ First Amendment rights extend to being
able to express personal views on matters of public concern in public with-
out fear of employment retaliation, but this right is limited with respect
to matters related to their jobs. e U.S. Supreme Court explained that
“the First Amendment does not prohibit managerial discipline based on
an employee’s expressions made pursuant to ocial responsibilities.”
114
As
the Court said, a restriction on speech that relates “to a public employee’s
professional responsibilities does not infringe any liberties the employee
might have enjoyed as a private citizen. It simply reects the exercise
of employer control over what the employer itself has commissioned or
created.”
115
Accordingly, for example, a register may prohibit an employee
111. G.S. 153A-103(1).
112. Sims-Campbell v. Welch, 769 S.E.2d 643 (N.C. Ct. App. 2015).
113. G.S. 153A-99(e).
114. Garcetti v. Ceballos, 547 U.S. 410, 424 (2006).
115. Garcetti, 547 U.S. 410.
30 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
from making o-duty public statements about register operations but not
about tax rates, presidential candidate preferences, or school board poli-
cies. Of course, registers may restrict activities while on duty to the extent
reasonably necessary for oce functioning.
G.S. 51-5.5(b) provides: “Every assistant register of deeds and deputy
register of deeds has the right to recuse from issuing all lawful marriage
licenses under this Chapter based upon any sincerely held religious objec-
tion. Such recusal shall be upon notice to the register of deeds and is in
eect for at least six months from the time delivered to the register of
deeds. e recusing assistant or deputy register may not issue any marriage
license until the recusal is rescinded in writing. e register of deeds shall
ensure for all applicants for marriage licenses to be issued a license upon
satisfaction of the requirements as set forth in Article2 of this Chapter.”
is election is not limited to any particular religion or religious practice
and applies to assistants and deputies, not to registers. If the right is exer-
cised it applies to “issuing all lawful marriage licenses” and is irrevocable
for six months. It remains in eect after the six months until the assistant
or deputy rescinds it in writing. e law does not require that the assistant
or deputy be excused or refrain from other aspects of managing marriage
records. e law is unclear about whether an election not to issue marriage
licenses is a matter of public record. Given this uncertainty a reasonable
approach would be to treat any information about the electing deputy’s
or assistant’s election as part of the condential personnel record under
G.S.153A-98 until the law has been otherwise claried either through
legislation or judicial decision. Although the law does not explicitly say that
the election may be in writing, a reasonable interpretation is that a register
may require a signed notice in order to make a record of the election. If it is
required it would appropriately contain a declaration that the assistant or
deputy is electing not to issue any marriage licenses for at least six months,
that this election is based on a “sincerely held religious objection,” and the
date of the election.
Chapter 1: The Oce and It’s Management —Updated 12/2016 | 30a
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1.6.3.4 Employee Rights to Compensation and Benets
e laws regarding employee compensation and benets are complex and
can be surprising. ey often change. Registers should consult with county
human resources managers to be aware of requirements and restrictions
that may apply to employment practices or decisions. Counties typically
have policies in place for other county employees to ensure compliance,
and following the same policies is therefore likely also to ensure compli-
ance within the register of deeds oce. Only a brief summary of some of
the important laws is possible here.
e federal Fair Labor Standards Act (FLSA)
116
requires a minimum wage
to be paid, which includes time-and-a-half pay or compensatory time o for
hours worked after forty in a week. e overtime pay requirements do not
apply to elected registers and may not apply to an employee who is paid on a
salary basis and has executive or signicant managerial responsibilities. e
ADA, discussed above, may require accommodations for employees with
disabilities. e federal Family and Medical Leave Act (FMLA)
117
requires
up to twelve weeks of unpaid leave per year for childbirth, for a serious
health condition, or to care for a family member with a serious health condi-
tion. Entitlement to leave arises with the birth of a child for care within one
year of birth; for care upon adoption or foster care within one year of place-
ment; for care of the employee’s spouse, child, or parent who has a serious
health condition; for a serious health condition that makes the employee
unable to perform the essential functions of his or her job; and for any
qualifying exigency arising out of the fact that the employee’s spouse, son,
daughter, or parent is a covered military member on active duty. Additional
requirements apply to a covered service member with a serious injury or
illness if the eligible employee is the service member’s spouse, son, daughter,
parent, or next of kin.
118
116. 29 U.S.C.A. §§ 201–219 (1998 & Supp. 2012).
117. 29 U.S.C.A. §§ 2601–2654 (2009 & Supp. 2012).
118. 29 U.S.C.A. §§ 621–634 (2008 & Supp. 2012).
Chapter 1: The Oce and It’s Management —Updated 12/2016 | 31
1.7 Ocial Accountability and Ethics
As public ocials, registers of deeds are accountable to the people of North
Carolina for executing their duties faithfully and honestly. It is a Class 1
misdemeanor for a register to fail “to perform any of the duties imposed
or authorized by law,” and the potential penalties include removal from
oce.
119
It is also a Class 1 misdemeanor for a register to “fail, neglect or
refuse to make, le, or publish any report, statement or other paper, or to
deliver to his successor all books and other property belonging to his oce,
or to pay over or deliver to the proper person all moneys which come into
his hands by virtue or color of his oce.”
120
Registers are subject to other restrictions and prohibitions in their con-
duct that apply to public ocials generally. e N.C. Constitution pro-
vides that funds raised through taxation may be used “for public purposes
only.”
121
e N.C. Supreme Court instructed that “for a use to be public
its benets must be in common and not for particular persons, interests,
or estates; the ultimate net gain or advantage must be the public’s as con-
tradistinguished from that of an individual or private entity.”
122
In most
cases there is no question that a proposed purpose, such as personnel costs
and costs of operations, is public. But in a modern environment, a wide
variety of less obviously public expenses are incurred in connection with
such things as educational programs and consultation with other ocials
and policy makers. Expenses for participation in educational programs
and associational activities related to the registers’ oces are appropriate
for registers and their employees. is includes participation in the North
Carolina Register of Deeds Association, which is described in Section 1.10
below. Although each register’s participation and support of individual ini-
tiatives may vary, the law recognizes that each county has an appropriate
role in an association of this nature.
123
For instance, each county benets
from its register’s participation in statewide policy initiatives. Expenses
119. G.S. 14-230, -231, -241.
120. G.S. 161-27; G.S. 14-231.
121. N.C. Const. art. V, § 2(1).
122. Martin v. N.C. Hous. Corp., 277 N.C. 29, 43, 175 S.E.2d 665, 673 (1970).
123. Horne v. Chan, 62 N.C. App. 95, 302 S.E.2d 281 (the N.C. Court of Appeals
upheld the appropriateness of county and city expenditures for a reception for state
and local ocials, noting that local ocials have a duty to represent their constituents
in inuencing state policy), a ’d 309 N.C. 813, 309 S.E.2d 239 (1983).
32 | North Carolina Guidebook for Registers of Deeds
set aside annually and placed in a nonreverting Automation
Enhancement and Preservation Fund, the proceeds of which
shall be expended on computer or imaging technology and
needs associated with the preservation and storage of public
records in the oce of the register of deeds. Nothing in this
section shall be construed to aect the duty of the board of
county commissioners to furnish supplies and equipment to
the oce of the register of deeds.
154
Fees “collected pursuant to G.S. 161-10” to which the 10 percent retention
requirement applies include all fees retained by the county for real estate
instrument recording, marriage licenses, vital record fees, and other fees
but do not include what the register collects for forwarding to the state,
nor do they include excise taxes. As the statute provides, the percentage
retained is separately calculated for fees for deeds of trust and mortgages.
is statute was intended to ensure that a portion of the register’s
receipts be available for the implementation and maintenance of technolo-
gies supporting the register’s functions. It does not give specic direction
about how this fund interrelates with other county funds necessary for
the register’s budget. e statute’s intent clearly would be violated if the
AEPF amount were merely blended into the county’s general fund and
applied indiscriminately to general county expenditures. Although the
statute does not require that funds be collected for more than one year, the
logic of a non-reverting fund is to address a register’s need to accumulate
funds from year to year for expenses that cannot be met from the recur-
ring operating budget.
e AEPF earmark for “needs associated with the preservation and stor-
age of public records” is broad. Information technology has since become
central to register operations, with demands not only for imaging and data
processing but now also for Internet facilities to enable online access and
ling. To honor the statutory intent and to fulll the register’s and the
county’s responsibilities to county citizens, the register and the county
nance ocer should work together to develop a multiyear technology
plan that includes how the fund is to be applied. e AEPF is a tool for
ensuring that resources are accumulated and made available for upgrades
and enhancements that require more than the usual operating budget
allocation.
154. G.S. 161-11.3.
Chapter 1: The Oce and Its Management | 43
e county can account for the AEPF, tracking the additions and with-
drawals, as a reserve in the general fund or as a special revenue fund. e
balance of the AEPF can be invested to earn interest. Like interest on any
other fund, the interest earned from the AEPF is tied to the AEPF and must
be used only for its purposes. As a recommended best practice, for greater
transparency and ease in tracking and reporting, the county should con-
sider showing the AEPF on its own separate page within the county budget.
e AEPF does not have to be balanced annually; the funds’ nonreverting
nature allows registers to accumulate a fund balance to pay for large capital
expenses that likely would not be funded through the annual operating
budget. Neither does the statute require that the funds accumulate from
year to year. e county should consider showing the year-end fund bal-
ance for the previous ve years to show the change in fund balance over
time.
43a | North Carolina Guidebook for Registers of Deeds —Updated 12/2016
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1.9.3 Fees
e recording fees charged by registers are prescribed by the Uniform Fee
Schedule in G.S. 161-10, which covers all real property instruments as well
as a variety of services performed by the oce (see Appendix 1). e reg-
ister may not impose dierent or additional fees or charges that are not
authorized by the statute. e statute makes no exception from the fee
requirements for instruments registered by other county or governmental
oces or by nonprot organizations.
An exact amount is specied for almost all services. For services not
specied, the statute provides as follows: “For performing miscellaneous
services, such as faxing documents, providing laminated copies of docu-
ments, expedited delivery of documents, and similar services, the cost of
the service.”
155
is enables registers to recover the costs of providing a
service that is not specically addressed with a fee, which may vary some-
what from county to county. To justify the amount of a miscellaneous fee,
a register should be able to show a rough calculation based on the actual
costs of providing a service. e statute does not exclude consideration of
personnel costs that can be directly tied to the service.
All fees must be collected before an instrument is recorded or any other
service is performed.
156
A register cannot accept a recording if less than the
full amount is paid and is not obliged to accept checks with overpayments
from which an amount is refunded from the register’s account. A register
is not authorized to allow presenters to maintain charge accounts for which
statements are later mailed periodically. A register may enable presenters
to keep prepaid accounts from which the register deducts fees as they are
incurred, because this is the equivalent of payment in cash.
Registers are responsible for the handling of all funds they receive, and
they must ensure that receipts are deposited into the appropriate accounts.
Fees and excise taxes are deposited into the county general fund except
as otherwise allocated by statute. Portions of fees and excise taxes that
are payable to the state are deposited according to the instructions of the
State Treasurer and likely handled through the county nance director.
Allocations include a portion of instrument recording fees for use in state
accounts
157
and a portion of marriage license fees for state funds related to
155. G.S. 161-10(a)(19).
156. G.S. 161-10(c).
157. G.S. 161-11.5.
44 | North Carolina Guidebook for Registers of Deeds
49— Updated 12/2016
Chapter 2
Public Records and Management
2.1 Record Keeping Generally 51
2.1.1 General Record Keeping Responsibility 52
2.1.2 Disaster Preparation 54
2.2 Access to Public Records 56
2.2.1 Primary Records 58
2.2.1.1 Real Estate 58
2.2.1.2 Marriage Licenses 59
2.2.1.3 Birth Certicates (Updated 12/2016) 59
2.2.1.4 Death Certicates 61
2.2.1.5 Military Discharges 62
2.2.2 Operational Records 64
2.2.3 Internal Oce Records 64
2.2.3.1 Personnel Records 65
2.2.3.2 Legal Materials 65
2.2.3.3 Trade Secrets 66
2.2.3.4 Records Involving Public Security 66
2.3 Copies of Unrestricted Records 66
2.3.1 Copies of Single Records 67
2.3.2 Copies of Databases 68
2.4 State Vital Records Processing 69
2.4.1 Delayed Birth Registration 69
2.4.2 Amendments to Birth and Death Records 71
2.4.3 Legitimations 72
2.4.4 Verication 73
2.5 Notary Commissions 73
2.6 Grave Removals 75
2.7 Records Disposal and Archiving 76
2.7.1 General Retention Practices 76
2.7.2 Retention Requirements 77
2.7.2.1 Primary Records 79
2.7.2.2 Operational Records: Indexes 79
2.7.2.3 Internal Oce Records 80
2.7.3 Required Duplication 81
2.7.4 Destruction 83
2.8 Internet Record Redaction 83
2.9 Archived Records No Longer Recorded 85
2.9.1 County Bonds 85
2.9.2 Farm Names 86
2.9.3 Jury Lists 86
2.9.4 Stray Livestock 86
2.9.5 Timber Marks 87
50 | North Carolina Guidebook for Registers of Deeds
which the information on the certicate is pertinent. A register
may rely on an attorney’s reasonable representation in this regard.
• An authorized agent, attorney, or legal representative of any of the
above
29
A uniform fee is set for a certied copy of a birth certicate, which
the register can waive for a copy provided to someone over the age of
sixty-two.
30
e register’s birth certicate records are only for births led through
this state’s vital records system. ey are not for birth records that some-
one in the public may wish to record, though nothing prohibits recording
birth certicates in the real estate records provided the appropriate fees
are paid. If someone presents a document for recording in the real estate
records that is unattached to a real estate document, purports “to impact
an ocial record of birth,” and is not a record led within the state’s o-
cial system, G.S. 161-14.02 directs the register to mark the rst page of
that purported birth record as follows: “THIS DOCUMENT IS NOT AN
OFFICIAL BIRTH RECORD.”
2.2.1.4 Death Certicates
Death certicates are important evidence for handling the aairs of a
deceased person, including for making funeral and burial arrangements.
ey are important for ling a probate action to handle the deceased’s
property, for showing the passage of real estate held jointly or in common,
for access to bank accounts, for claims on life insurance, and to establish
other legal rights. e government uses death certicates to track those
who were responsible for child or spousal support. e information in
death certicates also is used for collecting data on causes of death and
other health trends.
e data for a death certicate is provided by a funeral director or other
person who rst assumes custody of a body, with medical information pro-
vided by a physician or other authorized medical practitioner or ocer.
31
A
death certicate must be led with the local vital records registrar within
29. G.S. 130A-93(c), (g); G.S 130A-99.
30. G.S.161-10(a)(8).
31. G.S. 130A-112; G.S. 130A-115.
Chapter 2: Public Records and Management —Updated 12/2016 | 61
ve days after the death, and the registrar must transmit the certicate to
the register within seven days of receipt.
32
Anyone may obtain an uncertied copy of a death certicate. Only the
following persons may obtain certied copies of these records:
• e subject of the record (unless the person claiming to be the
subject is deceased according to the records)
• e subject’s spouse, parent, direct ancestor or descendant,
stepparent or stepchild, brother or sister
• A person seeking legal determination of personal or real property
rights. e statute does not further explain who meets this
32. G.S. 130A-97(5); G.S. 130A-115.
61a | North Carolina Guidebook for Registers of Deeds
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description. A reasonable interpretation is that it includes an
attorney of record in litigation, such as a probate case, in which the
information on the certicate is relevant. A register may rely on an
attorney’s reasonable representation in this regard.
• An authorized agent, attorney, or legal representative of any of the
above
33
• A funeral director or funeral service licensee
34
Fees for certied copies of death certicates are set by statute.
35
Also by
statute, the N.C. Department of Administration is entitled to “the requested
number of certied copies” of local public records without charge when
needed to assist veterans or their beneciaries in obtaining benets.
36
e
department’s Division of Veteran’s Aairs normally makes these requests,
but they also are sometimes made on behalf of the division by a local vet-
eran’s aairs representative.
2.2.1.5 Military Discharges
Military discharge records commemorate service to the country and pro-
vide documentary evidence of qualication for veterans’ benets. ese
records are kept by the National Archives and Records Administration
(NARA), which is the ocial repository for records of military personnel
who have been discharged from the U.S. Marine Corps, Navy, Air Force,
Army, and Coast Guard. e form most commonly used for veterans’ pur-
poses is the DD Form 214, Report of Separation. is form includes infor-
mation about such things as dates of service, last duty assignment and rank,
military specialty, and medals and awards. Veterans and their next of kin
can quickly obtain this form from NARA without charge.
37
e option of
ling a copy with the service member’s county register of deeds oce is
oered as a convenience.
ere is no restriction on public access to copies of military discharge
records that have been on le for more than eighty years. By statute, access
33. G.S. 130A-93(c), (g); G.S. 130A-99.
34. G.S. 130A-93(c), (c1).
35. G.S. 161-10(a)(8).
36. G.S. 165-11(a).
37. Instructions and forms for obtaining military discharge records from
the NARA are available at www.archives.gov/veterans/military-service-records/
about-service-records.html.
62 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
89
Chapter 3
Real Estate Instrument Registration
and Indexing
3.1 Conveyances and Instruments 93
3.1.1 Conveyances 93
3.1.2 Purpose of Registration 95
3.1.3 Basic Nature of Instruments 100
3.1.4 Closings 102
3.2 Registering Real Estate Instruments 104
3.2.1 General Duty to Register Instruments Presented 104
3.2.2 Instrument Format and Required Contents 107
3.2.2.1 Nonconforming Features 107
3.2.2.2 Drafter’s Name 108
3.2.2.3 Mailing Name and Address 108
3.2.2.4 Grantor Signatures 109
3.2.2.5 Real Estate Tax Certications 110
3.2.2.6 Parcel Identier Number 111
3.2.3 Originality Requirements 111
3.2.3.1 Instruments Requiring Verication 112
3.2.3.2 Previously Recorded Instruments 114
3.2.3.3 Certied Copies 116
3.2.3.4 Electronic Filings 117
3.2.3.5 Uncertied Copies or Instruments Not
Requiring Verication 120
3.2.4 Verication 121
3.2.4.1 Authorized Ocers 123
3.2.4.1.1 NORTH CAROLINA OFFICIALS 124
3.2.4.1.2 FEDERAL AND OUTOFSTATE OFFICIALS 126
3.2.4.2 Required Elements 127
3.2.4.2.1 OFFICER’S SIGNATURE 128
3.2.4.2.2 COMMISSION EXPIRATION DATE 129
3.2.4.2.3 OFFICIAL SEAL 129
3.2.5 Payment of Recording Fees 132
3.2.6 Payment of Excise Taxes 133
3.2.6.1 Payment of the State Excise Tax 133
3.2.6.1.1 TRANSFERS SUBJECT TO TAX AND
EXCEPTIONS 133
3.2.6.1.2 AMOUNT AND COLLECTION 137
3.2.6.1.3 REFUNDS AND CORRECTIONS 139
3.2.6.2 Separate County Excise Tax 141
3.2.7 Satisfaction Instruments 142
3.2.7.1 Nature and Function 142
3.2.7.2 Historic Methods of Satisfaction 143
3.2.7.3 Common Forms of Satisfaction Instruments
(Updated 12/2016) 145
3.2.7.4 Adavits of Satisfaction (Updated 12/2016) 146
3.2.7.5 Deeds of Release 148
3.2.7.6 Documents of Rescission 149
3.2.7.7 Register Verication and Registration 149
3.2.8 Plats 150
3.2.8.1 Permissible Plat Size and Material 151
3.2.8.2 Certication Requirements and Exceptions 152
3.2.8.3 Plats Requiring Special Treatment 155
3.2.8.3.1 HIGHWAY RIGHTOFWAY PLANS 155
3.2.8.3.2 TRANSPORTATION CORRIDOR MAPS 157
3.2.8.3.3 CONDOMINIUM PLANS 157
3.2.8.3.4 ANNEXATION MAPS 158
3.2.9 Farmland District Notices 158
3.2.10 False Lien Claims (Updated 12/2016) 159
3.3 Indexing Real Estate Instruments 160
3.3.1 Purpose and Eect of Indexing 161
3.3.2 Prompt Indexing 163
3.3.3 Structure, Contents, and Order of Index 164
90 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
3.3.4 Identifying Parties 167
3.3.4.1 Representatives 170
3.3.4.2 Subsequent Instruments 171
3.3.4.3 Spelling Discrepancies 173
3.3.4.4 Other Names for Same Party 173
3.3.4.5 Parties to Common Instruments 174
3.3.4.5.1 AFFIXING MANUFACTURED HOME NOTICE 174
3.3.4.5.2 ASSIGNMENT OF SECURITY INSTRUMENT 174
3.3.4.5.3 ASSUMED NAME CERTIFICATE
(Updated 12/2016) 175
3.3.4.5.4 BANKRUPTCY NOTICE 175
3.3.4.5.5 DEED 175
3.3.4.5.6 DEED OF TRUST 176
3.3.4.5.7 FORECLOSURE DEED 176
3.3.4.5.8 PLATS 176
3.3.4.5.9 POWER OF ATTORNEY (Updated 12/2016) 177
3.3.4.5.10 REQUEST FOR NOTICE OF FORECLOSURE 177a
3.3.4.5.11 SATISFACTION OF SECURITY INSTRUMENT 178
3.3.4.5.12 SUBSTITUTION OF TRUSTEE 178
3.3.5 Format of Index Name Entries 178
3.3.5.1 Recognized Characters 179
3.3.5.2 Components of Human Names 180
3.3.5.2.1 LANGUAGE CONVENTION 180
3.3.5.2.2 HYPHENATED SURNAME 181
3.3.5.2.3 SURNAMES IN PARENTHESES 181
3.3.5.2.4 SUFFIXES 182
3.3.5.2.5 TITLES AND DEGREES 182
3.3.5.3 Status Field 182
3.3.5.4 Estate Names 183
3.3.5.5 Trust Names 183
3.3.6 Search Aids 183
3.3.6.1 Equivalencies 184
3.3.6.2 Auto Completion 184
3.3.6.3 Soundex 185
3.3.6.4 Political Divisions 186
3.3.6.5 Words Beginning with The, A, An 186
3.3.6.6 Results and Punctuation, Symbols, and Spaces 186
3.3.7 Corrections to Index 187
Chapter 3: Real Estate Instrument Registration and Indexing —Updated 12/2016 | 91
3.4 Uniform Commercial Code Filings 187
3.4.1 Registration 188
3.4.2 Indexing 190
3.4.3 Information Requests 190
3.5 Torrens Law 191
3.5.1 Background and Use 191
3.5.2 Title Registration 192
3.5.3 Deeds of Trust and Other Liens and Claims 193
3.5.4 Ownership Transfers 194
3.5.5 Indemnity 195
3.5.6 Release from Registration 196
92 | North Carolina Guidebook for Registers of Deeds
obligation.
153
If the secured creditor fails to provide a satisfaction as
required, an attorney licensed to practice law in North Carolina, acting as
“satisfaction agent,” may record an “adavit of satisfaction” after complet-
ing the steps required by statute.
154
e borrower’s attorney’s adavit of satisfaction must contain informa-
tion prescribed by statute about the security instrument and about having
completed the procedure for demanding a satisfaction instrument from
the secured creditor or about the procedure not being necessary under
the circumstances, and it must be signed by the borrower’s attorney as
satisfaction agent and acknowledged or sworn to or armed.
155
e regis-
ter is not responsible for reviewing the adavit to ensure that it contains
the required information. e statute provides that a register may not
refuse to accept an adavit of satisfaction “substantially complying” with
the requirements unless it “is submitted by a method or in a medium not
153. G.S. 45-36.9(a).
154. G.S. 45-36.15.
155. G.S. 45-36.13; G.S. 45-36.16.
Table 3.2 Standard Satisfaction Forms
Type of Instrument Signatory
Satisfaction of security instrument (no fee)
(G. S. 45-36.11)
Secured creditor
Trustee’s satisfaction of deed of trust (no fee)
(G.S. 45-36.21)
Trustee (secured creditor may also sign
that obligation is extinguished)
Notice of satisfaction (no fee)
(G.S. 47-46.1)
Secured creditor or trustee
Certicate of satisfaction (no fee)
(G.S. 47-46.2)
Owner of note or secured creditor
Adavit of satisfaction (no fee)
(G.S. 45-36.17)
N.C. attorney satisfaction agent
Partial release (fee applies)
(G.S. 45-36.22)
Secured creditor or trustee
Deed of release (fee applies)
(G.S. 45-41)
Party holding interest
Chapter 3: Real Estate Instrument Registration and Indexing —Updated 12/2016 | 147
authorized for registration by the register of deeds under applicable law”
or it is not signed by the satisfaction agent and acknowledged as required
by law for a real estate conveyance.
156
e statute expressly states that a
register is not “required to verify or make inquiry concerning” “the truth of
the matters stated” in the adavit or “the authority of the person execut-
ing” it.
157
An instrument purporting to be an adavit of satisfaction that is
not apparently signed by the borrower’s attorney cannot be registered. e
register must verify that the instrument is signed by the satisfaction agent,
and only the borrower’s attorney can be a satisfaction agent.
3.2.7.5 Deeds of Release
A record that a security instrument has been terminated also may be
accomplished by recording a deed of release.
158
To be recorded, a deed
of release must be acknowledged in the same manner and is subject to
the same register verication and recording fee requirements as any other
deed.
As mentioned above, sometimes a lender wants to release a security
instrument from particular real estate even though the underlying obliga-
tion has not been paid in full. is occurs, for example, when a deed of
trust or mortgage applies to several lots and the lender is releasing only one
lot in connection with a partial payment of the obligation secured by the
deed of trust. A form of satisfaction called a partial release may be used.
159
Practitioners customarily use partial release deeds for this purpose.
160
156. G.S. 45-36.18(c).
157. G.S. 45-36.18(c)(2).
158. G.S. 45-41.
159. G.S. 45-36.22.
160. e statute providing for a deed of release authorizes the deed to “satisfy of
record, discharge and release [the deed of trust or mortgage] and all property thereby
conveyed.” G.S. 45-41. is raises a question about whether the prescribed deed of
release may be used for less than “all property,” as it often is in practice. e statutes
do not clearly provide that a satisfaction of security instrument or trustee’s satisfac-
tion may be used for partial release of secured real estate. e statute for subsequent
instruments refers to a “release or partial release of property from the lien of a secu-
rity instrument” in the denition of subsequent instruments. G.S. 161-14.1(a)(3)(j). It
separately refers to “a record of satisfaction or other instrument purporting to satisfy
a security instrument.” is suggests that “satisfy” can be interpreted “completely
satisfy,” whereas “release” is a term used in the context of both full and partial pay-
ments. is distinction between “satisfy” and “release” may reect a custom of using
148 | North Carolina Guidebook for Registers of Deeds
3.2.10 False Lien Claims
Registers are public ocials who take oaths to maintain the laws of North
Carolina. A register may justiably be concerned about placing on the pub-
lic record an instrument that is presented for the obvious sole purpose
of harassment, fraud, or commission of a crime, or an instrument that
appears to have no conceivable legitimate purpose for being in the public
real estate records. For example, some wrongdoers le a “nonconsensual
lien” against a targeted public ocial that claims a security interest unless
the target responds within a given time, but the ocial knows nothing
about the claim. Although the frivolous nature of these kinds of instru-
ments may be obvious, they still could cause delay or complication while
the circumstances are investigated and costs to the target if judicial relief
must be sought. Someone who les a fraudulent or frivolous instrument
may be prosecuted for a criminal act, such as common law fraud or the
statutory felony of ling a false lien or encumbrance.
200
Someone harmed
may have a civil remedy, such as for fraud as well as for slander of title.
201
A statute authorizes registers to reject instruments that seem to be
falsely claiming a lien against a public ocer, a public employee, or an
immediate family member of the ocer or employee on account of the
ocer or employee’s ocial duties, and the law requires certain actions if
this occurs or if a court declares a lien to be false.
202
e statute provides
that “if a register of deeds has a reasonable suspicion that the lien or
encumbrance is false..., the register of deeds may refuse to record the
lien or encumbrance” and that the register will not “be liable for recording
or the refusal to record a lien or encumbrance” according to this law.
203
Note
that this law is permissive and not mandatory—it does not impose a duty on
registers to review documents claiming liens or encumbrances and judge
whether they appear to be valid. is legislation is aimed at documents that
claim a lien against public ocials when the presenters obviously had no
nancial transaction involving the ocials. According to the Federal Bureau
of Investigation, such tactics may be indicated by “documents that contain
peculiar or out-of-place language,” including “references to the Bible, e
200. G.S. 14-118.6(a); G.S. 44A-12.1.
201. Allen v. Duvall, 63 N.C. App. 342, 345, 304 S.E.2d 789, 791 (1983), rev’d on
other grounds, 311 N.C. 245, 316 S.E.2d 267 (1984).
202. G.S. 14-118.6.
203. G.S. 14-118.6(b).
Chapter 3: Real Estate Instrument Registration and Indexing —Updated 12/2016 | 159
Constitution of the United States, U.S. Supreme Court decisions, or treaties
with foreign governments, personal names spelled in all capital letters or
interspersed with colons (e.g., JOHN SMITH or Smith: John), signatures
followed by the words ‘under duress,’ ‘Sovereign Living Soul’ (SLS), or a
copyright symbol (©), personal seals, stamps, or thumb prints in red ink,
and the words ‘accepted for value.’ ”
204
ere have been prosecutions and
convictions against those using lien claims as a tactic to intimidate and
harass ocials.
If a register refuses to record an instrument based on this law, the pre-
senter may record a “Notice of Denied Lien or Encumbrance Filing” on a
form that the N.C. Secretary of State has approved. A recording fee is not
necessary for this notice. Any interested person, including the presenter,
then has ten business days to le a court action to challenge the rejection.
If the court determines that the document was recordable, the order can
be led with the register. If the court nds that there is no basis for the
proposed ling, the court will order that the proposed ling is void and that
it will not be recorded, and a copy of the order is led with the register. If
a register receives a court order declaring that a led lien or encumbrance
is false, and therefore void, in addition to ling the order the register is
required to conspicuously mark on the rst page of the original record
previously led the following statement: “THE CLAIM ASSERTED IN
THIS DOCUMENT IS FALSE AND IS NOT PROVIDED FOR BY THE
GENERAL LAWS OF THIS STATE.”
205
3.3 Indexing Real Estate Instruments
Registers of deeds maintain indexes so that records can be found. e
principal method for accomplishing this goal is to index the names of the
parties to the instruments with a reference to the book and page at which
an image of the record can be seen. e following sections describe the real
estate instrument indexing requirements and procedures.
204. Federal Bureau of Investigation, Sovereign Citizens: A Growing Domestic reat
to Law Enforcement, www.fbi.gov/stats-services/publications/law-enforcement-bulletin/
september-2011/sovereign-citizens.
205. G.S. 14-118.6.
160 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
beneciary as named in the assignment is indexed as a grantee. A cross-
reference to recording data for the original security instrument is indexed
as it appears in the assignment.
3.3.4.5.3 ASSUMED NAME CERTIFICATE
Any person, partnership other than a limited partnership, or corporation
that does business in a county under an assumed name must le a cer-
ticate with the register.
239
e signature must be acknowledged.
240
is
requirement does not apply to professional service entities that le required
reports with licensing agencies.
241
e certicate is indexed in the consoli-
dated index with the person or entity ling the certicate, and the assumed
name, as grantors.
A person or rm records a certicate of transfer when the assumed name
is being transferred to another person and records a certicate of with-
drawal when it no longer intends to conduct business under the assumed
name.
242
e certicate of transfer or withdrawal must be executed by the
person or rm that executed the original certicate of assumed name, and
the execution must be acknowledged.
243
e assignor and the assumed
name are indexed as grantors and the assignee is indexed as a grantee.
Registers should keep apprised of developments that might require them
to forward copies of assumed business documents led in their oces to
the N.C. Secretary of State for entry into a centralized statewide database.
3.3.4.5.4 BANKRUPTCY NOTICE
Someone les a notice of bankruptcy to alert creditors about an owner
having led a federal bankruptcy petition. By federal law, no creditor may
foreclose on property owned by a debtor in bankruptcy without the court’s
permission, known as relief from the stay, and no litigation may be com-
menced or continued against the debtor without such relief. e name of
the debtor in the bankruptcy as shown on the notice is indexed as a grantor.
3.3.4.5.5 DEED
A deed is an instrument that conveys an interest in real estate. An instru-
ment that is a deed usually contains the word “deed” within its title, such
239. G.S. 66-68(a).
240. G.S. 66-68(b).
241. G.S. 66-68(e).
242. G.S. 66-68(f).
243. Id.
Chapter 3: Real Estate Instrument Registration and Indexing —Updated 12/2016 | 175
as “warranty deed,” “quitclaim deed,” or “easement deed.” Although a deed
of trust is a form of deed, it has its own indexing considerations, which are
described in Section 3.3.4.5.6 below. Customarily, only sellers or persons
conveying property sign a deed, and they are indexed as grantors. e
buyers or persons receiving a property interest are indexed as grantees.
Occasionally, something more than a simple conveyance is happening with
a deed, usually indicated by signatures for both parties. is may occur, for
example, if two owners are signing one deed to exchange a portion of land
along a boundary. When it appears that someone is releasing or conveying
something back to a grantor in exchange, both parties should be cross-
indexed in grantor and grantee capacities.
3.3.4.5.6 DEED OF TRUST
A deed of trust is a security instrument by which owners convey an inter-
est in property to a trustee for a lender’s benet. e owners are indexed
as grantors, and the lenders, also known as beneciaries, are indexed as
grantees. Customarily, only the owners sign the deed of trust, although
sometimes a lender also signs. e trustee usually is an attorney or insti-
tution. ose who search indexes look for deeds of trust in the name of
the owner and beneciary, and by statute the name of the trustee is not a
required entry.
244
3.3.4.5.7 FORECLOSURE DEED
After a foreclosure, the trustee or mortgagee will record an instrument
that will be in the form of a foreclosure deed or notice of conveyance.
With it the trustee or lender is transferring the property to the buyer at
foreclosure. e trustee or mortgagee who transfers is indexed as a grantor,
and the purchaser at foreclosure is indexed as a grantee. e name of the
owner whose property is being conveyed also is indexed as a grantor.
245
e
original beneciary also will be indexed as a grantee if and as identied in
the notice of foreclosure.
3.3.4.5.8 PLATS
e Minimum Standards require plats to be indexed in the consolidated
real property indexes.
246
Each plat is to be indexed in the grantor index in
244. G.S. 161-22(d).
245. G.S. 161-22.1.
246. Minimum Standards Rule 6.01.
176 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
the name of the property owner and in the name of the plat title, as shown
in the property designation portion of the plat.
247
Right-of-way plans recorded by the N.C. Department of Transportation
must be cross-indexed “by number of road aected, if any, and by identi-
cation number.”
248
Transportation corridor maps must be “cross-indexed by number of
road, street name, or other appropriate description.”
249
e government
agencies or units adopting such maps should be indexed as grantors, and
the proposed road numbers, street names, or rail lines should be indexed
as grantees; this apparently will meet the statutory requirements for cross-
indexing. ese maps are not recorded in the regular map books or les
and should be indexed in the general real property indexes. e presenter
must provide a list of the names of all property owners aected by the cor-
ridor, and the register indexes each name as a grantor.
250
Condominium plats are indexed in the deed indexes, with the property
owner and condominium as grantors. e index entry should also refer to
the book and page and date of recording of the declaration of condominium
as shown on the plan.
251
3.3.4.5.9 POWER OF ATTORNEY
With a power of attorney, someone identied as a principal gives an attorney-
in-fact the power to sign an instrument or perform other acts in the princi-
pal’s name. e principal giving the power is indexed as a grantor and the
designated attorney-in-fact is indexed as a grantee. When the power of attor-
ney instrument gives more than one person a power, such as when alternate
attorneys-in-fact are named, those recipients also are indexed as grantees.
Identifying the parties to a power of attorney instrument can be prob
-
lematic when the instrument involves securitized trusts. Lenders some-
times use indecipherable references that do not appear to be actual names
and whose relationship to the recorded instrument is unclear. For example,
the instrument may refer to an appointment being made to an institu-
tion in connection with “Securitized Trust ABC, Mortgage Pass-rough
Certicates, Series 20015-05.” is is not a name of a lender from whom
247. Id. Rules 6.02, 6.03.
248. G.S. 136-19.4(c).
249. G.S. 136-44.50(b)(3).
250. G.S. 136-44.50(a)(3) and (b)(4).
251. G.S. 47C-2-109(a); Minimum Standards Rule 6.04.
Chapter 3: Real Estate Instrument Registration and Indexing —Updated 12/2016 | 177
the borrower got the mortgage loan or of anyone else who appears to be in
the chain of title for the premises. Some instruments contain long lists of
securitized trusts for which the attorney-in-fact is authorized to execute
instruments, without respect to whether these trusts in fact hold any mort-
gages in the jurisdiction. Financial institutions may be including every pos-
sible loan arrangement into a single instrument and recording it in every
jurisdiction in which it does business, without considering registry index-
ing or title searches. Even though no one will ever look for such names in
the index, and the relevant instruments can reasonably be found with the
actual parties involved, if a name appears to be granting a power or receiv-
ing it the register may deem it to be for a party to the instrument being
recorded and therefore appropriately indexed. But this may be unclear and
the register cannot reasonably be faulted for not indexing the names in cir-
cumstances involving such confusing drafting. For example, the following
language in a power of attorney instrument would not require indexing of
the names on a schedule:
ABC Bank (“the Bank”) appoints Acme Servicing LLC (“the
Servicer”) to be the Bank’s attorney-in-fact in connection with
the Pooling and Servicing Agreements in Schedule A hereto . . .
at the bank is giving powers to the servicer as well as information in the
schedule about underlying agreements or loans does not make the names
listed in the schedule parties to the power of attorney instrument. On the
other hand, a register would index the names on the schedule when lan-
guage similar to the following is used:
e trusts identied in the attached Schedule A (“the Trusts”),
by and through ABC Bank as Trustee (“the Trustee”), appoint
Acme Servicing LLC (“the Servicer”) to be their attorney-in-fact
in connection with . . .
In this example the trusts are named as principals appointing a servicer for
them, so they all appear to be parties to the attorney-in-fact instrument.
When an instrument ambiguously identies the relationship of names the
presenter should not be surprised by varied interpretations of the indexing
requirements and excessive name recording fees.
3.3.4.5.10 REQUEST FOR NOTICE OF FORECLOSURE
A lender who makes a loan secured by a deed of trust that is subordinate to
a prior recorded deed of trust or mortgage, as well as any other person, may
177a | North Carolina Guidebook for Registers of Deeds
le an instrument requesting notice if the beneciary of the prior-recorded
deed of trust or mortgage exercises the power of foreclosure sale. By statute,
the register is to index as grantors the owner who gave the prior recorded
deed of trust or mortgage and the person requesting the notice. e register
also must include a reference to the recording information for the prior
Chapter 3: Real Estate Instrument Registration and Indexing | 177b
recorded security instrument to which the request refers.
252
e original
beneciary as named in the request also should be indexed as a grantee.
3.3.4.5.11 SATISFACTION OF SECURITY INSTRUMENT
In any form and by any title, satisfaction instruments—commonly in the
form of a satisfaction of security instrument, trustee’s satisfaction, notice
of satisfaction, certication of satisfaction, or deed of release—are records
showing that the security instruments, including, but not limited to, deeds
of trust, are no longer in eect. Beneciaries or trustees who give the satis-
faction instruments are indexed as grantors. Searchers want to be able to
nd a satisfaction instrument when they see on the record the deed of trust
or other security instrument to which it applies, and this will occur when
the satisfaction instrument is properly indexed as a subsequent instrument.
Accordingly, owners who were grantors of security instruments as named
in the satisfactions are indexed as grantors, and original beneciaries are
indexed as grantees if and as they are named in satisfaction instruments.
A cross-reference to recording data for the original security instrument is
provided if and as it appears in the satisfaction instrument.
3.3.4.5.12 SUBSTITUTION OF TRUSTEE
With a substitution of trustee instrument the beneciary of a deed of trust
is removing someone previously named as a trustee and appointing some-
one else to that capacity. e beneciary making the substitution is indexed
as a grantor, and the new trustee is indexed as a grantee. A substitution
is a subsequent instrument to the instrument that previously named a
trustee. Accordingly, owners who were grantors of security instruments
as named in the substitution are indexed as grantors and reference is made
to the security instrument recording data as provided in the substitution.
Although the original trustee may not be a required index entry, registers
commonly do index them as grantees.
3.3.5 Format of Index Name Entries
e basic approach for indexing the names of parties to an instrument is to
enter them in all capitals exactly as they appear on the document—that is,
as they were expressed by the drafter. In most cases this is simply a matter
of entering all characters in the same sequence.
252. G.S. 45-21.17A(b).
178 | North Carolina Guidebook for Registers of Deeds
197— Updated 12/2016
Chapter 4
Marriage Licenses
4.1 Registers’ Role (Updated 12/2016) 199
4.2 Capacity to Marry (Updated 12/2016) 201
4.2.1 Marital Status 201
4.2.2 Age Requirements 202
4.2.3 Kinship 203
4.2.4 Gender (Updated 12/2016) 204
4.2.5 Competency 204
4.3 Issuance of Marriage Licenses 204
4.3.1 Marriage License 205
4.3.2 Application Form and Identity (Updated 12/2016) 205
4.3.3 Personal Appearance 206
4.3.4 Age 207
4.3.5 Social Security Numbers 207
4.3.6 Fees 208
4.3.7 Responsibility of the Register 208
4.4 Marriage Ceremony and Record 209
4.4.1 Marriage Ceremony (Updated 12/2016) 209
4.4.2 Marriage Records 211
4.5 Delayed Marriage Certicates 213
4.6 Changes in Applications and Licenses 214
199
Chapter 4
Marriage Licenses
4.1 Registers’ Role
Registers of deeds issue marriage licenses to couples who can show that
they meet minimum age and other North Carolina law requirements. e
license authorizes civil and religious ocials to perform a ceremony within
the state at which the bride and groom declare their marriage. e oci-
ant and two witnesses of the ceremony sign the license, and the ociant
returns it to the register of deeds where it becomes a permanent public
record of the marriage.
In this procedure, registers do not “marry” people—they perform a func-
tion in behalf of the state to check that the couple meets the legal require-
ments before giving their marriage vows. In most cases, issuing the license
is a simple matter without legal complications, allowing the register to be
part of a joyous event. However, as this chapter describes, sometimes a
register must refuse a license application, and sometimes those who seek
it are left with an unsettled legal situation.
Issuing marriage licenses is one of the register’s basic functions, along
with recording real estate instruments and maintaining copies of vital
records. However, registers’ role in marriage law did not begin until after
the Civil War. Traditionally, couples who wanted to get married made a
public announcement, or banns, of their intent in church so that anyone
who had an objection—for example, someone to whom the bride or groom
was already married—could intervene. North Carolina law gave a couple
an alternative to the banns if they appeared before the county clerk for a
license and posted a bond to guaranty their qualication to get married.
After the war, the license process shifted to the registers of deeds, and
everyone was required to get a license.
1
Over the years registers have been
required to check for various qualications and have been responsible for
such things as enforcing prohibitions on interracial marriages and conrm
-
ing that medical test requirements have been met. e qualications have
changed over time, but North Carolina law still requires couples to get a
marriage license from a register of deeds.
What constitutes a marriage is a question of the law of the jurisdiction
in which the marriage occurs. In North Carolina, there are penalties for
performing a marriage ceremony without a license, but not for getting mar-
ried without a license. Unlike in some states, in North Carolina couples
can create a legally recognized marriage as a result of a ceremony without
a license. A couple cannot become married in what some states recognize
as a “common law marriage” based on how long a couple lived together
and whether they acted as husband and wife.
2
In this state the couple must
“celebrate” their marriage in a ceremony, intending in good faith for it to
be a marriage.
3
Becoming married at a ceremony without a license can cause dicult
legal problems for the couple. Among other things, without a recorded
license no one can determine whether they are in fact married until a
court has decreed it. Registers of deeds maintain permanent records of the
marriages that have been performed according to required procedure in
this state. Of course, many people who live in North Carolina were mar-
ried outside this state. Whether their marriages are legal is a question of
the law in the state or country in which the marriage occurred. Until 2015
the North Carolina Constitution provided, “Marriage between one man
and one woman is the only domestic legal union that shall be valid or rec-
ognized in this State,”
4
and the statutes provided, “Marriages . . . between
individuals of the same gender are not valid in North Carolina,” regardless
of where or how they are created.
5
As described below such gender restric-
tions are no longer constitutionally enforceable.
1. 1871–72 N.C. Sess. Laws ch. 193.
2. State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979), and State v. Wilson, 121
N.C. 650, 28 S.E. 416 (1897).
3. State v. Lynch, 301 N.C. 479, 272 S.E.2d 349 (1980); Alford, 298 N.C. 465, 259
S.E.2d 242; Wilson, 121 N.C. 650, 28 S.E. 416.
4. N.C. Const. art. XIV, § 6.
5. Section 51-1.2 of the North Carolina General Statutes (hereinafter G.S.).
200 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
4.2 Capacity to Marry
When a couple applies for a marriage license, the law requires that the
register of deeds make a reasonable inquiry to determine that both parties
have the legal capacity to marry under North Carolina law. Although the
license process is intended to prevent illegal marriages from occurring, get-
ting a license does not make legal what is otherwise illegal. If someone who
may not lawfully get married obtains a license, the marriage may be invalid
or subject to invalidation in a court action.
6
e licensing requirements are
intended to prevent this from occurring. e circumstances about which
the register inquires before issuing a license include the couple’s marital
status, age, and kinship. A register also may refuse to provide a license
based on a reasonable determination that the couple otherwise do not meet
the capacity to make the representations required of them for a license.
4.2.1 Marital Status
No one with a living spouse may legally marry any other person. Some-
one who marries while already married or who aids and abets such an act
is guilty of a Class I felony.
7
A person once married becomes eligible for
remarriage only after the spouse’s death or after a divorce from the prior
marriage is nal. A marriage is not terminated merely by separation or the
connement of one spouse in a prison, mental hospital, or other similar
institution. A spouse continuously absent and unheard from by friends or
relatives for seven years may legally be presumed dead, but this is a rebut-
table presumption, and a register cannot determine that the marriage has
been terminated under these circumstances without a court decree.
8
To determine the couple’s unmarried status, the register asks about
prior marriages, but he or she does not have the means or responsibility to
independently investigate the facts. Registers should stress to the couple
the importance of the truthfulness and completeness of the couple’s rep-
resentations under oath. When the information presented is unclear about
whether a divorce has become nal, a register may appropriately ask for
6. For a discussion of marriage laws in North Carolina and many of the practical
issues they raise, see Janet Mason, Marriage in North Carolina, Popular Govern-
ment (Winter 2006), at 26, http://sogpubs.unc.edu/electronicversions/pg/pgwin06/
article3.pdf.
7. G.S. 14-183.
8. Stewart v. Rogers, 260 N.C. 475, 133 S.E.2d 155 (1963); Ward v. Bailey, 118 N.C.
55, 23 S.E. 926 (1896); State ex rel. Spencer v. Moore, 33 N.C. 160 (1850).
Chapter 4: Marriage Licenses —Updated 12/2016 | 201
a certied copy of the divorce decree and may attach a copy of it to the
le copy of the application. If either party is uncertain about the status of
a prior marriage, or if the couple contests the register’s refusal to issue a
marriage license to them, the register should recommend that the couple
consult an attorney.
Occasionally, based on a misunderstanding a couple may represent to
a register that they are unmarried and obtain a marriage license, when in
fact one of them has not yet obtained a nal divorce decree. Under North
Carolina law, a marriage that takes place while one of the parties is still
married to another is void.
9
A void marriage is a nullity, as if it did not
occur. Consequently, if a couple appears before the register having already
obtained a license for a ceremony while one of them had not yet received
a nal divorce decree, the couple may, based on North Carolina law, apply
for a license after the divorce from the prior marriage is nal and represent
that they are unmarried, because their prematurely obtained license and
ceremony were nullities. However, this is a representation for the couple to
make based on their individual circumstances and the advice of their attor-
ney, not a conclusion about which registers should attempt to give advice.
4.2.2 Age Requirements
Any person at least eighteen years old, if not otherwise incapacitated, may
lawfully marry.
10
Younger persons may be issued marriage licenses in the
following three circumstances.
Sixteen to eighteen years old with consent. When either party to the pro
-
posed marriage is between sixteen and eighteen, the register of deeds may
issue a license provided the appropriate consent is obtained. e applicant
between sixteen and eighteen must le with the register a written consent
to the marriage signed by the appropriate person, agency, or institution,
which could be
• a parent having full or joint legal custody of the underage marriage
applicant; or
• a person, agency, or institution having legal custody or serving as
guardian of the underage marriage applicant.
11
9. G.S. 51-3; Ivery v. Ivery, 258 N.C. 721, 726, 129 S.E.2d 457, 461 (1963).
10. G.S. 51-2.
11. G.S. 51-2(a1).
202 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
e consenting custodian’s or guardian’s status may be established with
documentary evidence of the appointment. A parent who is divorced, sepa-
rated, or unmarried may have a court order or a separation agreement
establishing that he or she has sole or joint legal custody of a couple’s child.
Most parents, however, are never involved in a court action or contractual
agreement regarding custody of their children. ey have equal rights to
custody of their children that are not reected in any formal document. A
register should be able to rely on a parent’s adavit that sets forth sucient
facts on which the register may reasonably determine that the parent has
the required custodial rights.
Sixteen to eighteen years old and emancipated. A license also may
be issued to persons between sixteen and eighteen whom the court has
emancipated from parental authority. A certied copy of the emancipa-
tion decree or certicate of emancipation must be led with the register of
deeds before the license can be issued under this exception.
12
Fourteen to sixteen years old involving child with court order. A license
may be issued to a girl between fourteen and sixteen who is pregnant or
has a child or to a boy between fourteen and sixteen who is the father of a
child born or unborn. e register of deeds must issue a license if the girl
or boy and the other parent of the child (or expected child) agree to marry
and a district court judge has issued an order authorizing the marriage.
13
If both the girl and the boy are between the ages of fourteen and sixteen,
both must obtain court orders. Any other marriage involving an underage
person is voidable, although the law restricts the conditions under which
such a marriage can be declared void.
14
4.2.3 Kinship
No two persons of kinship nearer than rst cousins may lawfully marry,
and the law specically prohibits marriages between double rst cousins.
15
Double rst cousins are involved when brothers of one family marry sisters
of another, or when a brother and sister of one family marry a sister and
brother of another. e children (double cousins) of these marriages cannot
marry each other. In computing the degree of kinship, half-blood must
12. G.S. 51-2(a1).
13. G.S. 51-2.1(a).
14. Id.
15. G.S. 51-3.
Chapter 4: Marriage Licenses | 203
be counted as whole-blood, except for existing marriages that would be
made subject to question by that method of computation.
16
e statute
says that a marriage between two people of prohibited kinship “shall be
void” but then provides a number of circumstances under which such a
marriage may not be declared void. e North Carolina Supreme Court
has interpreted the statute as making such marriages voidable consistent
with the common law.
17
4.2.4 Gender
In June 2015 the U.S. Supreme Court held that the U.S. Constitution forbids
a state from denying a license for marriage between two people of the same
sex.
18
is rendered unenforceable the marriage license gender restrictions
in this state’s constitution and statutes. Accordingly there now are no gen-
der requirements for a marriage license.
4.2.5 Competency
A marriage is void if at the time of the marriage a party was “incapable of
contracting for want of understanding.”
19
A register does not have a duty
to make inquiry of all applicants to assess their mental capacity. But a reg-
ister should not issue a license to an applicant who is obviously intoxicated
or otherwise incapable of understanding what is occurring. ose who
are intoxicated may return when they are sober and apparently capable of
understanding what they are doing.
4.3 Issuance of Marriage Licenses
Marriage licenses may be issued to a qualied couple by the register of
deeds personally or by the register’s assistants and deputies. An assistant or
deputy should issue and sign the license in the register’s name as assistant
or deputy.
20
e following sections describe the required procedure for
issuing marriage licenses.
16. Id.
17. Ivery v. Ivery, 258 N.C. 721, 129 S.E.2d 457 (1963).
18. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
19. G.S. 51-3.
20. G.S. 51-8.
204 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
4.3.1 Marriage License
e marriage application, license, and certicate are elements of a three-
part form supplied pre-numbered to each register of deeds by N.C. Vital
Records. e register completes the top portion of the form and retains
the last page (the application) for the records. e applicants are given the
two remaining pages of the form, which constitute the marriage license.
ese are presented to the person performing the marriage ceremony, who
must complete both copies of the certicate and return them to the issuing
register within ten days after the ceremony.
21
Failure to meet these respon-
sibilities is a criminal misdemeanor oense and also makes the person
performing the marriage liable in the amount of $200 to anyone proving
in court that the person failed to act as the law requires.
22
If a person applying for a license submits a current and valid Address
Condentiality Program authorization card issued pursuant to Chapter
15C of the North Carolina General Statutes (hereinafter G.S.), the register
must use the substitute address designated by the program.
23
4.3.2 Application Form and Identity
To apply for a marriage license, a couple must complete the N.C. Vital
Records form by providing information necessary for the register to deter-
mine eligibility. e statutes do not prescribe what form of identication
is sucient to show that the person making the representations is who he
or she claims to be. e register should require both applicants to iden-
tify themselves with evidence that a reasonable person would nd reliable,
which would include but not be limited to government-issued photo identi-
cation, such as a driver’s license or passport. ere is no requirement that
applicants for a marriage license have North Carolina or U.S. identication
or proof of residency or citizenship status. However, a North Carolina stat-
ute, G.S.15-311, prohibits a government ocial from using a “matricular
consular or other similar document” for purposes of determining a person’s
identity or residence. Couples who meet the specied legal requirements
have a constitutional right to marry. Introducing additional requirements
could be a denial of constitutional rights of due process, equal protection,
and privileges and immunities.
24
21. G.S. 51-16.
22. G.S. 51-7.
23. G.S. 51-16.1.
24. Loving v. Virginia, 388 U.S. 1 (1967) (“Marriage is one of the ‘basic civil rights
of man,’ fundamental to our very existence and survival.”).
Chapter 4: Marriage Licenses —Updated 12/2016 | 205
4.3.3 Personal Appearance
Both parties to the marriage should personally appear before the register
when the application is submitted. e statutes allow issuance of a license
in the absence of one applicant who is over eighteen years of age if the
other party appears in person and submits a sworn and notarized adavit
from the absent party, with documentation about age and divorce status
if required by the county. is procedure is available only when one of the
parties is “unable to appear in person,”
25
which would include but is not
necessarily limited to a party’s incarceration, hospitalization, or deploy-
ment in the military. e statute provides the following form of adavit;
it or its equivalent is sucient if fully completed:
__________________, [applicant] appearing before the undersigned
notary and being duly sworn, says that:
(1) I, __________________, [applicant’s name] am applying for a license in
__________________ Count y, N or t h Ca rolin a , to m a rr y __________________
[name of other applicant] in North Carolina within the next 60 days
and I am authorized under G.S. 51-8.2 to complete this Adavit in
Lieu of Personal Appearance for Marriage License Application. I
attach: (1) documentation that I am over 18 years of age as required
in county of issuance; and (2) documentation of divorce as required
by county of issuance.
(2) I submit the following information in applying for a marriage license:
Name: ____________________________________________________
First Middle Last
Residence: _________________________________________________
State County City or Town
__________________________________________________________
Street and Number
Inside City Limits (Yes or No): ________________________________
Birthplace: ______________________________________________________
County & State or Country
Birth Date: __________________________ Age:____
Father: _________________________________________________________
Name State of Birth
__________________________________________________________
Address (if living) or Deceased
Mother: ________________________________________________________
Name State of Birth
__________________________________________________________
Address (if living) or Deceased
Race (optional): _________________________________________________
Number of this marriage: 1
st
, 2
nd
, etc. _____________________________
Last Marriage Ended by: _________________________________________
Death, Divorce, Annulment
25. G.S. 51-8.2.
206 | North Carolina Guidebook for Registers of Deeds
4.4 Marriage Ceremony and Record
After the register of deeds issues a marriage license, the couple appears
before someone authorized by North Carolina law to perform a ceremony,
known as an ociant. e license is returned to the register after the cer-
emony and the register keeps a record of it. e following sections describe
these requirements.
4.4.1 Marriage Ceremony
As provided in G.S. 51-1, an essential requirement for a valid marriage in
this state is “the consent of a male and female person who may lawfully
marry, presently to take each other as husband and wife, freely, seriously
and plainly expressed by each in the presence of the other . . . [i]n the pres-
ence of” an authorized ociant. Although the marriage ceremony required
in connection with a N.C. marriage license must be performed within the
state, whoever performs the ceremony need not be a resident of the state.
As noted above, a marriage performed in this state may be valid even if the
parties have not obtained a license or the license is invalid, but the person
performing the ceremony without requiring a license is subject to both
criminal penalties and civil liability.
37
e ceremony must be witnessed
by at least two persons. e person performing the ceremony and the two
witnesses must sign both copies of the certicate.
In this state there is no requirement or procedure for someone to be
licensed or listed on an ocial register to be an ociant of a marriage. e
statute gives the couple a wide range of choice about individuals who may
perform the ceremony and complete the license, including the following:
• Ordained minister of any religious denomination.
38
Whether
someone is ordained is a matter of the religion’s practice. ere is
no governmental license, registration, or approval of ordination for
this purpose.
• Minister authorized by a church.
39
is could be someone who
is not an ordained minister but to whom a church has given the
authority to conduct marriage ceremonies.
• In accordance with any mode of solemnization recognized by any
religious denomination.
40
is could include someone who follows
37. G.S. 51-7.
38. G.S. 51-1(1).
39. Id.
40. G.S. 51-1(2).
Chapter 4: Marriage Licenses —Updated 12/2016 | 209
a ceremonial procedure of a religious denomination that does
not ordain ministers or that authorizes particular individuals to
perform ceremonies.
• In accordance with any mode of solemnization recognized by any
federally or State recognized Indian Nation or Tribe.
41
e statute
defers to the Indian Nation or Tribe to determine the appropriate
ceremony.
• Magistrate.
42
Although the statute does not expressly state that
this is limited to a North Carolina state magistrate, a reasonable
interpretation is that the General Assembly had in mind this
particular judicial ocial within this state. Other magistrates can
have very dierent capacities and would only have judicial authority
given to them by the laws establishing their oces.
Occasionally the General Assembly authorizes by special act particular
categories of individuals to perform ceremonies, such as superior court
judges or mayors.
Registers often are asked whether someone who obtains an ordination
credential from an Internet service is authorized to perform a North Caro
-
lina marriage ceremony. Registers cannot give an opinion about whether
any particular individual or practice meets the statutory requirements, and
there is no clear answer in the law. e legislature and courts traditionally
have not wanted to try to be specic about what constitutes “religious” or
a “religion” out of respect for religious freedoms and because there is no
widely accepted way of going about doing so. However, the statute plainly
contemplates a choice of either a civil or faith-based ceremony, and magis-
trates are the only authorized purely civil authorities. e references to reli-
gious practices and church authority must mean more than simply wanting
to perform a ceremony, regardless of faith. Whether there is a sucient
relationship to religion could become a question—for example, with an
ordination certicate that is given to someone who is “non-religious or
even anti-religious,” as some organizations advertise.
43
e N.C. Supreme
Court’s bigamy cases suggest that more than a mere claim of ordination is
required. In State v. Lynch,
44
the court held invalid a marriage ceremony
41. Id.
42. Id.
43. Welcome Universal Life Church Monastery, available at About Universal,
www.themonastery.org/aboutUs.
44. 301 N.C. 479, 272 S.E.2d 349 (1980).
210 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
performed by a bride’s father with a mail order certicate. e court said
a ceremony performed by a layman with a credential from “the Universal
Life Church, Inc.—whatever that is—is not a ceremony of marriage to be
recognized for purposes of a bigamy prosecution in the State of North
Carolina.”
45
In another, more recent bigamy case, the N.C. Supreme Court
sustained a trial court’s nding that a marriage could not be legally con-
summated before someone whose occupation was in construction and who
did not have any ministerial capacity.
46
ese decisions do not necessarily
mean that any particular type of ordination will be invalid. ese cases
involve unusual circumstances and a bigamy prosecution, in which the
State had the burden of proving beyond a reasonable doubt that the rst
marriage was valid to establish the second marriage was bigamous. A court
might look at the issue dierently if bigamy were not involved and the
couple whose rights are in issue both chose the ociant, as is likely in a
divorce or probate proceeding. Furthermore, when there is evidence that a
ceremony took place, a court presumes “that it was legally performed and
resulted in a valid marriage.”
47
Someone who wants to have the marriage
declared void would have the burden of proving that the marriage was
invalid.
48
Nonetheless, there is no clear legal authority on which a couple
can rely when choosing an ociant whose ordination is from an organiza
-
tion without a clear religious orientation.
4.4.2 Marriage Records
e ociant is required to return the completed license to the register
within ten days after the marriage, “under penalty of forfeiting two hundred
dollars ($200.00) to the use of any person who shall sue for the same.”
49
e
modest amount of the penalty makes it unlikely that someone would sue for
it for a single instance of noncompliance. In any event, although a penalty
may be imposed, the license does not become invalid merely because the
45. Id. at 488, 354.
46. Mussa v. Palmer-Mussa, 366 N.C. 185, 731 S.E.2d 404 (2012).
47. Kearney v. omas, 225 N.C. 156, 163, 33 S.E.2d 871, 876 (1945).
48. Mussa, 366 N.C. at 194, 731 S.E.2d at 410. See also Duncan v. Duncan, 232
N.C. App. 369, 754 S.E.2d 451 (2014) (Parties had two ceremonies, the rst ociated
with Universal Life Church credentials. ey stipulated that the rst ceremony was
essentially the same as the ceremony in Lynch that was invalidated. However, the
court held that the husband was equitably estopped from arguing that the rst was
voidable because he was equally negligent in relying on the ociant’s credentials.).
49. G.S. 51-16.
Chapter 4: Marriage Licenses —Updated 12/2016 | 211
ociant did not return it within ten days. e register should process a
license despite its lateness.
Registers also are sometimes faced with a situation in which a license
is returned and it is obvious that the ceremony was performed after the
license had expired. us, the license was invalid at the time the marriage
was solemnized. Even though the license was invalid, the marriage is still
valid, and the couple is legally married. In such a case, the register should
process the license.
By the fteenth of each month, the register must le with N.C. Vital
Records the other copy of all certicates returned to the oce during the
preceding month.
50
e register keeps a copy of the returned license for
the permanent record. e register indexes the marriage certicates by the
last name of each applicant for the marriage license. Each index entry must
show at least the following information: the full names of the intended
husband and wife, the date of the ceremony, and a reference to where the
license can be found in the register’s records.
51
e register’s record copies of marriage licenses are public records and
must be open to inspection during regular business hours.
52
An uncerti-
ed copy of a license must be provided to anyone upon payment of the
prescribed fee, but a certied copy may be provided only to the following:
• A person seeking a copy of his or her own license
• e subject’s spouse, parent, direct ancestor or descendant,
stepparent or stepchild, brother or sister
• A person seeking legal determination of personal or real property
rights. e statute does not further explain who meets this
description. A reasonable interpretation is that it includes an
attorney of record in litigation, such as a probate proceeding, in
which the information on the certicate is pertinent. A register
may rely on an attorney’s reasonable representation in this regard.
• An authorized agent, attorney, or legal representative of a person
described above
53
An exemption to the fee may apply for voter registration as noted in Appendix 1.
50. G.S. 130A-110(a).
51. G.S. 51-18.
52. G.S. 130A-93(c); G.S. 130A-110(d).
53. G.S. 130A-110(c); G.S. 130A-93(c).
212 | North Carolina Guidebook for Registers of Deeds—Updated 12/2016
217— Updated 12/2016
Appendix 1
Fees
Recording Real Estate Instruments
Instruments except deeds of trust and mortgages ...... $26 rst 15 pages
$4 ea. add’l page
(S.L. 2016-23 provides that there is no fee for a Notice of Aected Parcel,
recorded by the North Carolina Geodetic Survey, identifying property in the
county along the reestablished boundary with South Carolina, pursuant to
such session law.)
Deeds of trust and mortgages. . . . . . . . . . . . . . . . . . . . . . . . $64 rst 35 pages
$4 ea. add’l page
Plats .................................................. $21 ea. sheet
Nonstandard document ......................................... $25
Multiple instruments as one, each ............................... $10
Add’l assignment instrument index reference, each ................ $10
Add’l party to index in excess of 20, each ...........................$2
Satisfaction instruments ..................................... No fee
UCC Records
One or two pages in writing ..................................... $38
More than two pages in writing ..................... $45 up to 10 pages
$2 ea. page over 10
Response to written request for information ...................... $38
Copy of statement ...................................... $2 ea. page
Marriage Licenses
Marriage license ............................................... $60
Delayed marriage certicate, with one certied copy .............. $20
Application or license correction with one certied copy .......... $10
Marriage license certied copy .................................. $10
Other Records
Recording military discharge ................................ No fee
Military discharge certied copy as authorized ................. No fee
Birth certicate certied copy ................................... $10
(register may waive for person over 62 years old)
Birth certicate after one year or more for same county,
with one certied copy ....................................... $20
Papers for birth certicate in another county one year
or more after birth ........................................... $10
Birth certicate for papers from another county one year
or more after birth, with one certied copy ..................... $10
Death certicate certied copy .................................. $10
Birth record amendment ........................................ $10
Death record amendment ....................................... $10
Legitimations .................................................. $10
Certied copies unless statute otherwise provides ......... $5 rst page
$2 ea. add’l page
Uncertied copies .................................... Cost as posted
Other Services
Notary public oath ............................................. $10
Notarial acts ........................................ $5 ea. signature
(not charged if performed with acts for which there is
a fee except if fee is for registering instruments or plats)
Comparing copy for certication ................................. $5
State vital records automated search ............................. $14
State vital records automated search copy ......................... $10
(register may waive for person over 62 years old)
Miscellaneous services .................................Cost as posted
218 | Appendix 1—Updated 12/2016
219— Updated 12/2016
Appendix 2
Receipt Allocations
Deeds and Other Instruments (except plats, deeds of trust, and
mortgages)
Register receipt (up to 15 pages) ............................... $26.00
Less:
1.5% Pension Fund ......................................... (0.39)
State Treasurer ............................................ (6.20)
Receipts retained by county .................................... 19.41
Less: 10% Automation Fund .................................. (1.94)
Undesignated county register receipts .......................... $17.47
Deeds of Trust and Mortgages
Register receipt (up to 35 pages). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $64.00
Less:
1.5% Pension Fund ......................................... (0.96)
State Treasurer ............................................ (6.20)
Receipts retained by county ................................... 56.84
Less: Automation Fund ....................................... (6.20)
Undesignated county register receipts ......................... $50.64
Marriage Licenses
Register receipt ............................................. $60.00
Less:
1.5% Pension Fund ......................................... (0.90)
Children’s Trust Fund ...................................... (5.00)
Domestic Violence Center Fund ............................ (30.00)
Receipts retained by county .................................... 24.10
Less: 10% Automation Fund ................................... (2.41)
Undesignated county register receipts .......................... $21.69
Other Fees Subject to Pension and Automation Funds
(not VRAS or excise tax)
Register receipt (example) ..................................... $10.00
Less:
1.5% Pension Fund ........................................... (.15)
Receipts retained by county .................................... 9.85
Less: 10% Automation Fund .................................. (0.99)
Undesignated county register receipts .......................... $8.86
220 | Appendix 2
