Fee for Filing Documents Electronically in a County Register's Office Was Not Authorized by Statute or Otherwise | NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

New Jersey Land Title Association v. Rone, 458 N.J. Super. 120 (App. Div. 2019). May a County Register or Clerk charge a surcharge or convenience fee when a document is filed electronically? That was the question that today’s opinion by Judge Gilson had to answer. Applying de novo review to this purely legal issue, the panel reversed a summary judgment in favor of defendant, the Essex County Register, and ruled that such charges are not permissible.

Two statutory provisions governed the issue, Judge Gilson said. N.J.S.A. 46:26-1 states that the fees permitted to be charged “shall be the fees prescribed and fixed by the title Fees and Costs.” That title is N.J.S.A. 22A, and N.J.S.A. 22A:4-4.1 in particular lists the fees that may be charged for filing documents affecting real property. “The statute, however, does not authorize a fee for accepting an electronically-filed document,” Judge Gilson observed.

The Register argued that N.J.S.A. 22A:4-4.1 was limited to fees for the “physical act of filing, recording, and entering paper documents,” and that the statute does not apply to electronically-filed documents. Judge Gilson did not agree. After reviewing the history of legislation in this overall area, he concluded that “the Legislature has comprehensively preempted the field of filing fees for documents affecting real property. The fees in N.J.S.A. 22A:4-4.1 are, therefore, the comprehensive fees authorized by the Legislature for county registers and clerks to perform their services as the county recording officer. If a fee is not listed in N.J.S.A. 22A:4-4.1, it cannot be charged.”

The Register also contended that N.J.S.A. 40A:5-45 and its implementing regulations permitted the fee at issue. Again, Judge Gilson disagreed, noting that the plain language of that statute and related provisions defeated the Register’s argument. Similarly unavailing was the Register’s contention that the doctrine of quantum meruit, defined by Judge Gilson as “as much as is deserved,” justified the charge.

“Quantum meruit applies when one party has conferred a benefit on another and the circumstances are such that to deny recovery would be unjust.” Here, Judge Gilson said, “[p]arties submitting documents affecting real property are not enriching themselves by filing those documents electronically. Instead, they are filing those documents to protect their interests and are paying an associated fee established by the Legislature.”

In short, the Legislature did not authorize the fee in question, and there was no other basis for it either. “If county registers or clerks believe their offices are incurring costs that are not covered by the fees set forth in Title 22A, their recourse is to petition the Legislature to provide some means to address those costs, by allowing the collection of an additional fee or in some other manner.” The panel reversed the summary judgment in favor of the Register, and remanded the case with a direction that the complaint be reinstated and that partial summary judgment for plaintiff be entered prospectively enjoining the Register from collecting the fee.

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