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July 02, 2020

New witness requirements

On July 1, 2020, an obscure change to an Indiana recording statute becomes effective, requiring lawyers to change how they prepare deeds, mortgages, powers of attorney, affidavits, and other instruments1 that must be recorded in an Indiana County recorder’s office. This directive provides significant guidance to all Indiana State Bar Association members about this change and the sufficiency of signatures and notarial certificates for recording any deed, mortgage, or other paper or electronic instrument after June 30, 2020.

Indiana Code 32-21-2 and prior statutes have provided flexible authority to Indiana county recorders to accept deeds and other written instruments that contain either an acknowledgment of the grantor’s or other signer’s signature before certain authorized notarial officers or a common law “proof” described in Indiana Code 32-21-2-6. The roots of this flexibility stretch back to Indiana’s young statehood during the 1800s, when opportunities to locate a notarial official were not as prevalent as in our modern times. Many drafters, signers, and notaries of instruments submitted to Indiana county recorders in our day and age utilize an acknowledgment as a notarial certificate related to a signer’s identity, signature, and representations to a notary. During the general session of the 2020 Indiana General Assembly, Senate Enrolled Act 340 changed a critical conjunction in Indiana Code 32-21-2-3(a) from “or” to “and,” culminating in two significant outcomes:

1. The long standing flexibility provided by the word “or” was destroyed; and
2. The use of “and” in the Indiana Code 32-21-2-3(a) amendment with other

related recording statutes created the requirement for BOTH an acknowledgment for any signer AND a proof related to a witness’ viewing the signer’s execution of the instrument as well as the witness’ signature of the instrument in order to record that instrument with an Indiana county recorder after June 30, 2020.

What is a Common Law “Proof”?

Since the “acknowledged” in Indiana Code 32-21-2-3(a) refers to the notarial act of an acknowledgment (the authentication of a signer’s identity and signature with a signer’s declaration about the purpose of the instrument and any authority of the signer to execute the instrument), the “proved” in Indiana Code 32-21-2-3(a) and the use of “proved” and “proof” in other areas of Indiana Code 32-21 refers to another notarial act: a proof. One form of a common law “proof” involves a disinterested person to the transaction as a witness, who observes the grantor, mortgage borrower, lease landlord or other signer as that signer signs a paper or electronic instrument. The witness also signs his or her name on the instrument and appears before a notarial officer so the notarial officer can:

1. authenticate the witness’ identity and signature;
2. disclose in a notarial certificate the results of the authentication;
1 The word, “instrument(s)”, in this directive means any written, paper, or electronic document or record
submitted to an Indiana county recorder to record in the indexes and among the various land records in that Indiana
county recorder’s office.

Anita Ma ther

Indiana Barr Association

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