“The times they are a-changin”
– Lyrics from Bon Jovi
Recent changes on a county and state-wide basis will affecct New Jersey document recording and real estate law practices. First, Mercer County has announced an upgraded system for recording of land and property records, together with a user regisdtration system. More on the Title Village Blog >>>
On a state-wide basis, a recent article reprinted here with permission from the author and the New Jersey Land Title Association, combines history and humor. . .
Turning the Page on Bound Books of Paper
By Lawrence C. Bell, Esq.
This article appears in the Spring 2012 edition of NJLTA’s “Advocate,”
the official publication of the New Jersey Land Title Association.
Time was the tools of our trade consisted of quill pens and well bound books of good paper. To be recorded, a document was presented to the clerk who acted as a scrivener and transcribed (copied) the contents of the document longhand into the ‘official record’. The original would then be returned to the presenter. Refinements in writing instruments saw the demise of the quill pen (Latin penna, meaning feather) but the handwritten nature of recorded instruments continued until the acceptance of “a machine for the impressing or transcribing of letters singly or progressively one after another” known as a ‘writing machine’ or typewriter.
The typewriter did cause quite a stir among the purists who insisted that recording laws required the clerk to transcribe a document into the official record ‘by his own hand’. These types of disputes were either settled by Courts deciding that a typewriter satisfied the transcribing requirement or by the modification of the underlying statutes to allow typewritten entries. New Jersey was among the latter, adopting a statutory provision in 1912 that provided where instruments were required to be ‘in writing’, a transcription made in typewriting ‘shall have the same legal force, meaning and effect as if made in handwriting’.
The next big change to hit the recording offices was the development and availability of photographic processes such as microfilm. It was clear that to be recorded an instrument was required to be transcribed, word for word, by hand or by typewriting machine, so how could this new fangled technologically advanced process be considered an ‘official record’? The Legislature silenced the critics with the stroke of a pen allowing for the use of any photostatic, photographic or other mechanical process which produces a clear, accurate and permanent copy or reproduction of the original, provided that where photographic methods are used, all instruments presented for recording shall be typed, written or printed on paper of sufficient quality to avoid bleed-through, and be legible and clear so as to produce a good, clear, legible photo recording.
Other notable changes evident in the record rooms of the 21 New Jersey County Clerk’s/Register’s Offices included the disappearance of searchers pulling books with a cigarette dangling from their lips, but since that has little or nothing to do with the advancement of technology as applied to our record keeping processes, we will just fast forward to the appearance of the computer.
Enter the computer, computerized indexing technology, and the’ development of electronic alternatives to paper documents. Could this be the precursor to Star Trek Transporter technology? I don’t know about that, but I do know that the National Conference of Commissioners on Uniform State Laws had the foresight to address the application of this new emerging technology and to propose a Uniform Electronic Transactions Act (UETA) in order to focus national attention on standardization and prevent fragmentation in electronic commerce.
The UETA provided for the legal recognition of electronic records, electronic signatures and electronic contracts by providing that a signature or a contract could not be denied legal effect and enforceability solely because it was in electronic form and that if a law required a record to be in writing or if a law required a signature, an electronic record or electronic signature shall satisfy the law. As of the present date, 47 States have adopted the UETA including New Jersey where the law became effective in tune of 2001, codified at N.J.S.A. 12A:12-1 et seq. A Federal body of law has also been enacted, known as Electronic Signatures in Global and National Commerce Act (E-sign) at 15 U.S.C. 7001, providing that a signature, contract, or other record may not be denied legal effect, validity, or enforceability solely because it is in electronic form.
With the enactment of E-sign and the UETA, the New Jersey Law Revision Commission went about the substantial task of examining and revising the existing New Jersey statutes applicable to the recording of title documents. Their final report, issued in November of 2003, proposed broad and sweeping revisions that provided for the development and use of systems that would allow for recording of electronic documents without disrupting the existing and ongoing processes of recording documents. Based upon the Law Revision Commission Report, Senate Bill 1800 was introduced before the New Jersey Legislature on September 27, 2004 which Bill received substantial support from both the NJ legal and title communities. Despite active support, 5.1800 did not make it out of the Senate Community and Urban Affairs Committee when first introduced.
During the 2006-2007 Legislative Session, the Bill addressing the revision of laws relating to title recordation was again introduced as 51649 on March 20, 2006. Backed by Primary Sponsor Ronald L. Rice and with the active support of the Bar and title communities, the Bill passed in the Senate but did not make it out of Committee in the Assembly. Reintroduced in the 2008-2009 Legislative Session as 51027, the Bill would again fail to move toward passage, but the 4th time was the charm, when introduced as S88 in January of 2010 and substituted as Assembly Bill 2565 three months later.
After eight years of hard work and lobbying for change, the New Jersey Bar and The New Jersey Land Title Association succeeded in fostering the modernization of our recording laws with the passage of Assembly Bill A2565, signed into law on January 17th, with an effective date of May 1, 2012. With thanks to Primary Sponsors Assemblyman Patrick J. Diegnan and Assemblywoman Annette Quijano and Co-Sponsors Assemblyman Joseph V. Egan, Assemblyman Craig J. Coughlin, Assemblyman Reed Gusciora, Assemblyman John S. Wisniewski and Senators Ronald L. Rice, Linda R. Greenstein and Jennifer Beck, this revision to the recording laws, codified at N.J.S.A. 46:26A, 26B, and 26C et seq., accomplishes several of the objectives included in the November 2003 New Jersey Law Revision Commission report. The future has arrived in New Jersey as to the statutory basis for the electronic recording of documents.
The new law requires the implementation of a standardized cover page for indexing purposes which use will become mandatory within 5 years. The New Jersey Division of Archives & Record Management (DARM) shall create this form as well as establish rules, standards, and procedures for all recordings in collaboration with the local county recording offices. The mandate is for DARM to adopt regulations that will “foster state-wide uniformity” in title recordings as we move forward with the use of electronic recording technology.
The new law also sets out a five year timetable for considering implementation of a per-document recording fee rather than a per-page fee as has always existed for the recording of paper documents. DARM is charged with creating the regulations under which the county clerks and registers shall report the number, type and charge associated with recording the various document types and for providing reports including actual average per document charges.
Revised requirements and procedures for the filing of maps, including major and minor subdivision and roadway parcel maps have been set forth in order to standardize and facilitate electronic map filings. Of particular note are changes to the existing Notice of Settlement (NOS) law, including extending the 45 day effective period to 60 days; providing that a second NOS may be filed for an additional 60 days of priority protection; and providing for a Discharge of a Notice of Settlement in the event a NOS must be cancelled on account of error or the noticed deed or mortgage transaction not proceeding. The statute provides a form at N.J.S.A 46:26A-11(c). These changes to the existing Notice of Settlement Law further enhance our ability to facilitate the closing or settlement process in New Jersey with a level of protection that virtually every other State wishes they had.
Additional new provisions in the law include a requirement that all documents be recorded and indexed within two business days of receipt by the county recording office and that any documents that may be rejected be sent back within three days of receipt.
Since this new body of law does not take effect until May 1, 2012 the Notice of Settlement provisions outlined above will not become effective until that time. Everyone should please check with their own underwriters with any questions you may have. A full copy of the Advance Law may be viewed here:
Lawrence C. Bell is Vice President, Senior Underwriter and Regional Underwriting Counsel, Northeast/Mid-Atlantic Region, for Stewart Title Guaranty Company. The opinions and views expressed herein are solely those of the author and not his employer or the NJLTA.