May 18, 2011
By: Cindi E. Cohen
Lerch, Early & Brewer's Real Estate Law Update
May 2011
Last fall we alerted you that due to the recent rash of foreclosures in Maryland, many counties were requiring payment of the recordation tax associated with recordation of an indemnity deed of trust (“IDOT”) before the county would accept a trustee’s deed for recordation following a foreclosure sale. Borrowers and lenders in Maryland have long been using indemnity deeds of trust as a means of securing a loan with real estate without payment of recordation taxes. Recordation tax is not due at the time of recording of an IDOT, because the IDOT only secures a contingent liability. The tax is due when the liability is no longer contingent. There is an attorney general’s opinion stating that it is the grantor of the IDOT who is liable for payment of the recordation tax once its debt is no longer contingent, not the lender. However, despite this opinion, certain counties were assessing the tax at the time of recordation of the trustee’s deed after a foreclosure.
This practice has ceased. Counties are no longer requiring payment of the IDOT recordation tax as a condition to recording the trustee’s deed. In fact, in at least one instance, Montgomery County voluntarily refunded the IDOT recordation tax it had collected from one lender.
Cindi Cohen’s practice is focused in the fields of real estate transactions, including leasing and acquisitions and dispositions, general business transactions, financing, foreclosures and general lender representation. For more information about recording real estate transactions, contact Cindi at cecohen@lerchearly.com or (301) 657-0169.
