Indiana recording laws establish procedures that must be followed when a document is recorded with the recorder’s office. Documents related to real property are commonly recorded, such as deeds, liens, and mortgages. Some estate planning documents may also need to be recorded in relationship to property ownership, such as trusts and power of attorneys.
Properly recording documents is essential to the validity of the document being recorded. Recording can determine priority of loans against a property, with priority being given to the first to record. Some documents do not become effective until they are recorded, such as transfer on death deeds. It is imperative that these documents are properly recorded.
A minor but important change has been made to the recording law, which will become effective July 1, 2020. There has been a long-standing flexibility when executing a document that needs recorded in utilizing a notary signature or a common law “proof” as provided for by Indiana statue. Indiana law has allowed either mechanism to be used when signing a document that needs recorded. The new law replaces the “or” with an “and,” requiring that both a notarial signature and a common law proof be present on all documents that need recorded. Failure to follow this new rule will result in improperly filed documents, which may impact their validity.
A common law proof requires a disinterested person witness the execution of the document by the signor. The witness must also sign his or her name on the document before a notary. The notary must place the witness under oath, authenticate the witness’ identity and signature, and disclose in a notarial signature the sworn witness’ declaration of witnessing the signing of the instrument by the signer identified by the witness. The common law proof is similar to the notarial signature that has been so commonly used, except that the common law proof requires a notarial signature for the witness of the execution, instead of the signor of the document. The new law will require two notarial signatures for each document: one for the signor, and one for the witness.
This one-word change has created a stricter procedure in executing documents that need recorded. It is important that these new requirements are followed to ensure the validity of a document that is recorded.
Please see an update to this blog published on March 17, 2021.