In July 2020, the Indiana Code § 32-21-2-3(a) was modified, changing an “or” to “and”, which had the effect of requiring that conveyances, mortgages, or instruments of writing being recorded must be “acknowledged” by the borrower and “proved” (ie: witnessed) before a notary.
After reviewing guidance from the Indiana State Bar Association, Indiana Recorders Association, and Indiana Land Title Association, Compliance Systems took the industry position that the change was a drafting error and was likely to be resolved in the next Indiana legislative session.
In January 2021, members of the Indiana House introduced House Enrolled Act No. 1056 (the “Act”), which contains amendments designed to correct the July 2020 error. On February 18, 2021, the Act was passed after being approved by the Senate and signed by the Governor. The Act does the following:
- Amends I.C. §32-21-2-3(a), so that any instrument being recorded must have one of the following notarial acts: (1) An acknowledgement or (2) A proof.
- Defines “proof” as under common law, or a witness before a notary.
- Provides new protections so that recorded documents may not be attacked on technical grounds.
- Provides that any instrument recorded prior to the passage of the Act, which did not contain both an acknowledgment and a proof, is still valid.