From the Real Estate & Land Use Section Executive Committee
As of July 1, 2020, all instruments which are to be recorded in the State of Indiana (deeds, mortgages, etc.) will need to comply with a modification to Indiana Code 32-21-2-3(a). Specifically, the Indiana General Assembly passed Senate Enrolled Act 340 during its 2020 session, which included a provision changing an “or” to an “and” in Indiana Code 32-21-2-3(a). The change invoked a requirement of common law “proof”, which is the requirement of a disinterested party to the transaction serving as a witness to the execution of an instrument.
While the change was unintentional by all accounts, until the change can be addressed during the 2021 session of the Indiana General Assembly, all practitioners will need to comply with the new requirements. The effect of this change is the requirement of a witness to all the signatures on such instruments, as well as a notarial certificate for the witness’s signature. This is in addition to the traditional signature of party(ies) to the instrument and the notarial certificates for those signatures.
All title insurance commitments issued in Indiana until such a modification is made are expected to include an additional requirement, which will generally read as follows: “Documents satisfactory to the Company that convey the title or create the interest to be insured, or both, must be properly authorized, executed, acknowledged, proved by a subscribing witness before a notarial officer pursuant to IC 32-21-2-3(a) effective July 1, 2020, and recorded in the Public Records.” In order to ensure that recorded documents avail themselves of title insurance and the protections provided thereby, it is imperative that all recorded instruments include the witness signature and companionnotarial certificate.
Qualifying witnesses must satisfy the following criteria:
- be a disinterested party (i.e., not a party to the instrument or a beneficiary of the transaction);
- witness the execution of the instrument by the signer(s);
- sign the instrument as a witness with the name of the witness printed or imaged beneath the witness’ signature;
- appear before and be put under oath by the notarial officer (i.e., the notarial officer cannot be the proof’s subscribing witness);
- attest to the notarial officer as to the instrument’s execution by the signer(s); and
- provide any other information necessary to the notarial officer to complete the notarial certificate (i.e., proof of identity).
Go to indybar.org/relu to see an example of the witness signature block and accompanying notarial certificate. •