Indiana recently amended Indiana Code §32-2-3(a), discussing recording requirements. As a result of this amendment, effective July 1, 2020, all instruments to be recorded in Indiana must be signed and notarized by both the grantor and a witness. Prior to this amendment, §32-2-3(a) required that instruments to be recorded be either acknowledged by the grantor or proved before a disinterested third party, as listed in the code section.
While this change was likely the result of an unintentional drafting error, until addressed, parties submitting instruments for recording must ensure that such instruments are both acknowledged by grantor and include a proof of execution.
Under Indiana Code §32-21-2-6, “a deed may be proved according to the rules of common law before any officer who is authorized to take acknowledgments”, including a notary public. Parties can satisfy the “proof” requirement by including a certificate of proof (or a similar notarial certificate) in all instruments to be recorded, which contains a witness’s notarized signature.
Importantly, the Indiana Recorders Association does not appear to recognize this new proof requirement. The Associations’ Recording Manual, last updated on August 21, 2020, states that “all documents are required to be acknowledged or notarized with only a few exceptions.” Therefore, despite the recent amendment to §32-2-3(a), recorders’ offices in Indiana may not reject documents due to lack of a certificate of proof.
The Indiana House of Representatives and Senate are currently adjourned sine die. Seyfarth will continue to monitor developments.