When is Virginia's regional congestion relief fee triggered: by the date a deed is signed, or by the date it's recorded?

Plain-English summary

In 2013 the General Assembly created a regional congestion relief fee on real estate conveyances in certain localities to fund transportation improvements (2013 Va. Acts ch. 766, codified as Va. Code § 58.1-802.2). It took effect on July 1, 2013.

That created a transition problem for instruments dated before July 1 but recorded afterward. On June 21, 2013 the Office of the Executive Secretary of the Supreme Court of Virginia told clerks to use the "date of the deed." On June 30, it reversed course and said to use the date of recordation. The requesting clerk reported that clerks had followed different instructions and asked the AG which date controlled.

The AG answered: date of recordation.

Why recordation, not transaction date. Although the statute calls the charge a "fee," it is structurally a tax: it sits in Title 58.1, Chapter 8, "State Recordation Tax," and its language tracks the traditional state recordation tax in § 58.1-802. The grantor pays the fee to the clerk as a prerequisite to recordation. The clerk cannot record any deed, instrument, or writing without first certifying the fee has been paid.

The Virginia Supreme Court held in Pocahontas Consol. Collieries Co., Inc. v. Commonwealth that recordation tax "is not a tax upon property, either within or out of the State, but a tax upon a civil privilege, that is, for the privilege of availing, upon the terms prescribed by statute, of the benefits and advantages of the registration laws of the State." The taxable event is use of the recording system, so the AG based this fee on the recordation date.

So the answer flows directly from the nature of the charge. Any deed recorded on or after July 1, 2013, in an affected locality must have the fee paid, regardless of when the underlying transaction was negotiated, closed, or memorialized.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Check the current text of § 58.1-802.2 for its rate, affected localities, and any later changes before relying on this 2013 opinion.

Common questions

What is the regional congestion relief fee?
A grantor-paid charge on real estate conveyance instruments recorded in the localities covered by § 58.1-802.2. The opinion describes it as funding transportation improvements and collected like a recordation tax.

Who pays it, the buyer or the seller?
The grantor (seller). It is collected by the circuit court clerk at recordation.

Does the fee apply outside Northern Virginia and Hampton Roads?
The opinion says the fee applies only in certain localities but does not list them. Consult the applicable version of § 58.1-802.2 for the covered jurisdictions.

What if a deed was signed in June 2013 but recorded in August?
The fee applies. The 2013 AG opinion answered exactly this scenario: the trigger is the date of recordation, not the date of the deed.

What if the clerk used the wrong date and assessed the fee incorrectly?
The opinion does not address refunds or correction procedures. It concludes that clerks should assess the fee by recordation date for instruments recorded in affected localities on or after July 1, 2013.

Can the parties allocate the fee differently in their purchase contract?
The opinion says the fee is payable by the grantor. It does not address whether a private contract can shift the economic burden.

What was the underlying confusion?
The Office of the Executive Secretary first told clerks to use the date of the deed, then reversed itself nine days later to use the date of recordation. Some clerks had already followed the first guidance. The AG's opinion confirmed the recordation date is the right rule and resolved the inconsistency going forward.

Background and statutory framework

• Va. Code § 58.1-802.2 (created by 2013 Va. Acts ch. 766): regional congestion relief fee.
• Va. Code § 58.1-802: traditional state grantor's recordation tax, with parallel language and structure.
• Va. Code § 1-214(A): general rule that statutes become effective on July 1 of the year of enactment unless otherwise specified.
• Pocahontas doctrine: recordation taxes are taxes on the privilege of using the recording system, not on property or on the transaction itself.

The interpretive moves:

• Read § 58.1-802.2 in parallel with § 58.1-802, which has long applied at recordation.
• Apply the established understanding (from Pocahontas and White) that recordation is the taxable event.
• The result is that timing follows recordation, not transaction date.

Citations

• Va. Code § 58.1-802
• Va. Code § 58.1-802.2
• 2013 Va. Acts ch. 766
• Pocahontas Consol. Collieries Co., Inc. v. Commonwealth, 113 Va. 108, 73 S.E. 446 (1912)
• White v. Schwartz, 196 Va. 316, 83 S.E.2d 376 (1954)
• 2013 Op. Va. Att'y Gen. No. 12-110
• 2012 Op. Va. Att'y Gen. 137

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-069_Frey.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

September 20, 2013

The Honorable John T. Frey
Clerk, Circuit Court of Fairfax
Fairfax Circuit Court
4110 Chain Bridge Road
Fairfax, Virginia 22030

Dear Mr. Frey:

I am responding to your request for an official opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether clerks of court should assess the regional congestion relief fee on real estate conveyance instruments based upon (i) the date of the transaction or (ii) the date of recordation.

Response

It is my opinion that clerks of court should assess the regional congestion relief fee on real estate conveyance instruments based upon the date of recordation.

Background

Your question pertains to the regional congestion relief fee adopted by the General Assembly in its most recent session.[1] You ask for clarification as to the assessment of such fee on the recordings of real estate conveyance instruments by the clerk of court.

You relate that an instruction distributed to clerks by the Office of the Executive Secretary, Supreme Court of Virginia, on June 21, 2013, stated that assessment of the fee should be based on the "'date of the deed' not the date of recordation." Subsequently, on June 30, 2013, the Office of the Executive Secretary changed its position and directed clerks to assess the fee based on the date of the instrument's recordation not the date of deed. As a result of these conflicting instructions, you relate that some clerks "assessed the fee based upon the date of the deed and others followed the ... directions to assess the fee based on the date of recordation." You now seek clarification regarding whether the fee properly is to be assessed only on conveyance instruments dated on or after July 1, or, upon such instruments recorded on or after July 1, even if the underlying conveyance transaction occurred on an earlier date.

Applicable Law and Discussion

Chapter 766 of the 2013 Session of the General Assembly, codified at § 58.1-802.2 of the Code of Virginia, requires the imposition of a fee "on each deed, instrument, or writing by which lands, tenements, or other realty ... is sold and is granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser ...."[2] The statute became law on July 1, 2013,[3] and applies to real estate transactions only in certain localities.[4] As provided in § 58.1-802.2 of the Code of Virginia, the clerk of the court cannot record any deed, instrument, or writing without first certifying that the fee has been paid by the grantor.[5]

Although described in the text of the statute as a "regional congestion relief fee" and dedicated to fund transportation improvements, the fee is imposed and collected in the form of a recordation tax. For example, the statute establishing the fee is located within Chapter 8, Title 58.1 of the Code of Virginia (a chapter titled "State Recordation Tax"), and its language and form track that of the traditional state recordation tax.[6] Furthermore, the regional congestion relief fee, like the state recordation tax, is payable by the grantor and collected by the clerk of court as a prerequisite to recordation.[7]

This Office has concluded and Virginia courts have held that recordation taxes are based upon the privilege of having access to the benefits of state recording and registration laws.[8] In Pocahontas Consol. Collieries Co., Inc. v. Commonwealth, the Court stated that a recordation tax "is not a tax upon property, either within or out of the State, but a tax upon a civil privilege, that is, for the privilege of availing, upon the terms prescribed by statute, of the benefits and advantages of the registration laws of the State."[9]

Thus, because the privilege of recordation is the manner by which the General Assembly chose to impose the fee and provide for its collection, it is my opinion that the fee should be assessed by clerks of court on real estate conveyance instruments based upon the date of their recordation. You will note that this conclusion is consistent with the correction notice sent to clerks of court from the Office of the Executive Secretary of the Supreme Court of Virginia.

Conclusion

Accordingly, it is my opinion that clerks of court should assess the regional congestion relief fee imposed by § 58.1-802.2 by the Code of Virginia on all real estate conveyance instruments recorded in the affected localities on or after July 1, 2013.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] 2013 Va. Acts ch. 766.

[2] VA. CODE ANN. § 58.1-802.2 (Supp. 2013).

[3] VA. CODE ANN. § 1-214(A) (2011).

[4] Section 58.1-802.2.

[5] Id.

[6] Compare § 58.1-802(A) and (B) (Supp. 2012) with § 58.1-802.2.

[7] Section 58.1-802.2.

[8] See 2013 Op. Va. Att'y Gen. No. 12-110 at 2; see also 2012 Op. Va. Att'y Gen. 137, 141 (citing Pocahontas Consol. Collieries Co., Inc. v. Commonwealth, 113 Va. 108, 112, 73 S.E. 446, 448 (1912) and White v. Schwartz, 196 Va. 316, 321, 83 S.E.2d 376, 379 (1954)).

[9] Pocahontas Consol. Collieries, 113 Va. 108 at 112, 73 S.E. 446 at 448.