Bulletin: IN2021001

Dear Associates:

On February 18, 2021, Governor Holcomb signed the Indiana Land Title Association’s (“ILTA”) House Bill 1056 (HB 1056) to effectively reverse the 2020 Senate Enrolled Act No. 340 (“SEA 340”). SEA 340, which became law effective July 1, 2020, changed an “or” to an “and” in Indiana Code 32-21-2-3(a), so that both a notarial acknowledgment and proof was required to record an instrument. With the passage of HB 1056, an instrument can be either acknowledged by a notary (defined at IC 33-42-0.5-2) OR a proof (defined at IC 32-21-2-1.7).

The notarial acknowledgement must be completed by a notarial officer, a remote notary public, or in compliance with certain other IN Code sections. The proof must be completed by a notarial officer, or in compliance with certain other IN Code sections - but not a remote notary.

Additional significant terms within this Bill include:

(i) an “instrument” [IC 32-21-2-1.5] is defined as either an electronic document or a paper document that is submitted to a county recorder for recording.

(ii) a “conveyance” [IC 32-21-4-1] is defined as an electronic document or a paper document that is a deed or instrument concerning land or an interest in land, except a Will; a lease or memorandum of lease for a term exceeding 3 years; a transfer on death deed; or a land contract or memorandum of land contract for the purchase and sale of the land.

(iii) A conveyance or mortgage must be recorded in the county where the land is located [IC 32-21-4-1(b)].

(iv) A conveyance or mortgage takes priority according to the time of recording [IC 32-21-4-1(c)].

(v) The above provisions are effective regardless of when an instrument is recorded and if it does not comply with the prior acknowledgment and proof requirement; technical requirements [IC 32-2-11-16 (c)]; executed pursuant to the terms of any Governor’s executive order or Supreme Court Order; or recorded as an electronic record [IC26-2-8-102].

What does this mean for our agents?

Effective immediately:

1. Your recordable closing documents no longer require the proof.
2. You can revise your deed templates to remove the witness signature and proof language as stated in the prior Bulletin IN2020004.
3. You can delete any requirement for a proof and any exception that a recorded document did not comply with the former requirements for both an acknowledgment and proof.
4. If a property search discloses a deed or other instrument recorded in the title chain after July 1, 2020, without a proof, it is now insurable. Stewart will insure instruments, conveyances, and mortgages that have a notarial acknowledgment; a proof; and both the notarial acknowledgement and proof, providing the document is executed pursuant to applicable Indiana Code provisions. You do not need additional Underwriting approval.

Underwriter Mutual Indemnity Agreement:

With the passage of HB1056, there should be no insurable effect for your reliance under the terms of the Indiana Inter-Underwriter Indemnification Agreement (MIA).

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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