Permits recording officers to require that conveyances of real property presented for recording be presented as digitized paper documents in the form of digitized images of original paper records.
Ayes (62): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Kruger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
TITLE OF BILL:
An act to amend the state technology law, the real property law and the civil practice law and rules, in relation to permitting electronic recording of instruments affecting real property
PURPOSE OR GENERAL IDEA OF BILL:
The fundamental purpose of this bill is to clarify the authorization for real property records official to accept records in electronic form, storing electronic records, and setting up systems for search for and retrieving these real property records. This bill modernizes the real estate transaction process.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of this bill would amend State Technology Law (STL), Section 307 to remove a provision that makes the Electronic Signature and Records Act (ESRA) inapplicable to conveyances or other instruments recordable under Real Property Law (RPL) Article 9.
Section 2 of the bill amends RPL Section 290, to include definitions or germs used in the new RPL Section 291-1, added by Section 3 of this bill.
Section 3 of the bill amends RPL Article 9 to add a new Section 29l-i that would confirm the validity of digitized paper documents, electronic records, electronic signatures and electronic notarization, as follows:
o RPL Section 291-1 (1) would provide that where a law, rule or regulation requires, as a condition of recording, that an instrument be a signed and notarized paper original, the requirement is satisfied by a digitized paper document or an electronic record that had been electronically signed and notarized.
o RPL Section 291-1 (2) would provide a form for a Certification as to Authenticity of digitized paper documents presented for recording or filing.
o RPL Section 291-1 (3) would authorize recording officers to receive, index, store, archive, transmit and provide access to electronic records, and to convert paper documents into electronic documents.
o RPL Section 291-1 (4) would provide that nothing in RPL Section 291-1 shall be construed to require electronic recording, but the governing body of a county may by local law authorize its recording officer to require electronic recording of instruments affecting real property. A recording officer so authorized would be required to provide for the waiver of such requirement in accordance with the
rules and standards promulgated by the State Office for Technology (OFT) as provided in RPL Section 291-1 (6).
o RPL Section 291·1 (5) would provide that where any recording officer permits or requires electronic recording pursuant to RPL Section 291-1, it must be in accordance with the rules, regulations, guidelines, standards, and policies established by OFT>
o RPL Section 291-1 (6) would provide that to ensure consistency in the practices and technology used by county clerks in the State, OFT would promulgate rules, regulations, guidelines, standards and policies as appropriate, governing the use and acceptance of digitized paper documents, electronic records, and electronic signatures under RPL Article 9.
o RPL Section 291-1 (7) would provide that recording officers must continue to furnish the State Office of Real Property Services (ORPS) with paper documents of reports required by Real Property Tax Law Section 574, unless ORPS agrees to accept data submissions in lieu thereof or has provided for the electronic transmission of such data pursuant to law.
Section 4 of this bill amends RPL Section 317 to provide that a digitized paper document or an electronic record would be considered delivered for purposes of RPL Section 317 of the date and at the time such document or record is successfully transmitted to a recording office.
Section 5 of this bill would amend CPLR Section 8021 (a) (4) (a) (I), to provide that no fee would be charged for a page transmitted for recording that contains the Certification as to Authentication of Digitized Paper Documents Presented for Recording or filing required pursuant to RPL Section 291·1 (2).
Section 6 of the bill makes it effective 270 days after it becomes a law, provided, however, that OFT would be authorized to promulgate rules, regulations, guidelines, standards and policies to effectuate the bill prior to such effective date.
This bill responds to the ongoing challenge of local governments to deliver more services with fewer resources. County clerks are continually seeking ways to improve efficiency, enhance services, and save taxpayer dollars. This bill permits, but not mandate, the application of information and communication technologies to support their activities related to the recording of instruments affecting real property.
In the past several years, virtually all businesses have become, to some degree or another, ebusinesses. Internet technology and readily available solutions have made e-business ubiquitous. Government has experienced a parallel trend. For example, the New York State Unified Court System has established "NYSCEF", a program that permits the filing an service of legal papers by electronic means with certain county clerks, and with courts in certain types of cases. This bill seeks to achieve similar efficiencies in the realm
of real property conveyances by enabling county governments to modernize the manner in which real estate professional and recording officers conduct their business together.
By implementing electronic recording, a local government would be able to reduce the volume of paper documents coming into the recorders' offices. Moreover, local governments that permit electronic recording stand to save considerable money of personnel and postage for returning documents.
Owners of real property, real estate professionals and local government taxpayers would benefit from the more accurate and efficient land records system that this bill would facilitate. This bill will also eliminate the need for persons seeking to record land documents to appear at the offices of recording officers to file hard copy originals, and it would provide for a more efficient and streamlined storage and retrieval system. Ultimately, electronic recording will improve the recording process from the point of origin (e.g. title companies, banks, attorneys' offices) to county clerks' offices. It will improve work flow, increase productivity, speed up the recording process and improve data accuracy.
2010 - S.8318 (Died - Rules)
None to the State. Depending on the level of participation in each county, the receipt of electronic records or digitized documents for recording will enable county clerk offices to attain significant savings from the elimination of document scanning and the reduction in time and supplies necessary to return documents to their custodians after the original copies have been recorded.
This bill would take effect 270 days after it becomes a law.
STATE OF NEW YORK ________________________________________________________________________ 2373 2011-2012 Regular Sessions IN SENATE January 19, 2011 ___________Introduced by Sen. STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Energy and Tele- communications AN ACT to amend the state technology law, the real property law and the civil practice law and rules, in relation to permitting electronic recording of instruments affecting real property THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 3 and 4 of section 307 of the state technology law, such section as renumbered by chapter 437 of the laws of 2004, are amended to read as follows: 3.
[To any conveyance or other instrument recordable under article nine of the real property law. 4.]To any other document that the electronic facilitator has specif- ically excepted, pursuant to the rules and regulations of the electronic facilitator, from the application of this article. S 2. Section 290 of the real property law, subdivision 4 as amended by chapter 569 of the laws of 1925, subdivision 5 as amended by chapter 317 of the laws of 1943 and subdivision 6 as renumbered by chapter 227 of the laws of 1926, is amended to read as follows: S 290. Definitions; effect of article. 1. The term "real property," as used in this article, includes lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years. 2. The term "purchaser" includes every person to whom any estate or interest in real property is conveyed for a valuable consideration, and every assignee of a mortgage, lease or other conditional estate. 3. The term "conveyance" includes every written instrument, by which any estate or interest in real property is created, transferred, mort- gaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument postponing or subor-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07544-01-1 S. 2373 2
dinating a mortgage lien; except a will, a lease for a term not exceed- ing three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property. 4. The term "recording officer" means the county clerk of the county, except in a county having a register, where it means the register of the county. 5. "Recording" or "recorded" means the entry, at length, upon the pages of the proper record books in a plain and legible hand writing, or in print or in symbols of drawing or by photographic process or partly in writing, partly in printing, partly in symbols of drawing or partly by photographic process or by any combination of writing, printing, drawing or photography or either or any two of them, OR BY AN ELECTRONIC PROCESS BY WHICH A RECORD OR INSTRUMENT AFFECTING REAL PROPERTY, AFTER DELIVERY IS INCORPORATED INTO THE PUBLIC RECORD. "Recording" or "recorded" also means the reproduction of instruments by microphotogra- phy or other photographic process on film which is kept in appropriate files. 6. "ELECTRONIC" MEANS OF OR RELATING TO TECHNOLOGY HAVING ELECTRICAL, DIGITAL, MAGNETIC, WIRELESS, OPTICAL, ELECTROMAGNETIC OR SIMILAR CAPA- BILITIES. 7. "ELECTRONIC RECORD" MEANS INFORMATION EVIDENCING ANY ACT, TRANS- ACTION, OCCURRENCE, EVENT OR OTHER ACTIVITY, PRODUCED OR STORED BY ELEC- TRONIC MEANS AND CAPABLE OF BEING ACCURATELY REPRODUCED IN FORMS PERCEP- TIBLE BY HUMAN SENSORY CAPABILITIES. 8. "ELECTRONIC SIGNATURE" MEANS AN ELECTRONIC SOUND, SYMBOL, OR PROC- ESS, ATTACHED TO OR LOGICALLY ASSOCIATED WITH AN ELECTRONIC RECORD AND EXECUTED OR ADOPTED BY A PERSON WITH THE INTENT TO SIGN THE RECORD. 9. "PAPER DOCUMENT" MEANS A DOCUMENT IN A FORM THAT IS NOT ELECTRONIC. 10. "DIGITIZED PAPER DOCUMENT" MEANS A DIGITIZED IMAGE OF A PAPER DOCUMENT THAT ACCURATELY DEPICTS THE INFORMATION ON THE PAPER DOCUMENT IN A FORMAT THAT CANNOT BE ALTERED WITHOUT DETECTION. 11. "WET SIGNATURE" MEANS A SIGNATURE AFFIXED IN INK OR PENCIL OR OTHER MATERIAL TO A PAPER DOCUMENT. 12. This article does not apply to leases for life or lives, or for years, heretofore made, of lands in either of the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware or Schenectady. S 3. The real property law is amended by adding a new section 291-i to read as follows: S 291-I. VALIDITY OF ELECTRONIC RECORDING. 1. NOTWITHSTANDING ANY LAW TO THE CONTRARY, (A) WHERE A LAW, RULE OR REGULATION REQUIRES, AS A CONDITION FOR RECORDING, THAT AN INSTRUMENT AFFECTING REAL PROPERTY BE AN ORIGINAL, BE ON PAPER OR ANOTHER TANGIBLE MEDIUM OR BE IN WRITING, THE REQUIREMENT IS SATISFIED BY A DIGITIZED PAPER DOCUMENT OR AN ELEC- TRONIC RECORD OF SUCH INSTRUMENT; (B) WHERE A LAW, RULE OR REGULATION REQUIRES, AS A CONDITION FOR RECORDING, THAT AN INSTRUMENT AFFECTING REAL PROPERTY BE SIGNED, THE REQUIREMENT IS SATISFIED, WHERE THE INSTRUMENT EXISTS AS A DIGITIZED PAPER DOCUMENT, IF THE DIGITIZED IMAGE OF A WET SIGNATURE OF THE PERSON EXECUTING SUCH INSTRUMENT APPEARS ON SUCH DIGITIZED PAPER DOCUMENT OR, WHERE THE INSTRUMENT EXISTS AS AN ELECTRONIC RECORD, IF THE INSTRUMENT IS SIGNED BY USE OF AN ELECTRONIC SIGNATURE; (C) WHERE A LAW, RULE OR REGULATION REQUIRES, AS A CONDITION OF RECORDING, THAT AN INSTRUMENT AFFECTING REAL PROPERTY OR A SIGNATURE ASSOCIATED WITH SUCH AN INSTRUMENT BE NOTARIZED, ACKNOWLEDGED, VERIFIED, WITNESSED OR MADE UNDER OATH, THE SIGNATURE REQUIREMENT IS SATISFIED IF:S. 2373 3
(I) THE DIGITIZED IMAGE OF A WET SIGNATURE OF THE PERSON AUTHORIZED TO PERFORM THAT ACT AND ANY STAMP, IMPRESSION OR SEAL REQUIRED BY LAW TO BE INCLUDED, APPEARS ON A DIGITIZED PAPER DOCUMENT OF SUCH INSTRUMENT; OR (II) THE ELECTRONIC SIGNATURE OF THE PERSON AUTHORIZED TO PERFORM THAT ACT, AND ALL OTHER INFORMATION REQUIRED TO BE INCLUDED, IS ATTACHED TO OR LOGICALLY ASSOCIATED WITH AN ELECTRONIC RECORD OF SUCH INSTRUMENT, PROVIDED, HOWEVER THAT NO PHYSICAL OR ELECTRONIC IMAGE OF A STAMP, IMPRESSION OR SEAL SHALL BE REQUIRED TO ACCOMPANY SUCH ELECTRONIC SIGNA- TURE. (D) WHERE A LAW, RULE OR REGULATION REQUIRES, AS A CONDITION OF RECORDING AN INSTRUMENT AFFECTING REAL PROPERTY, THAT ANY ACCOMPANYING DOCUMENT BE FILED THEREWITH, THE REQUIREMENT IS SATISFIED IF, IN THE CASE OF RECORDING BY ELECTRONIC MEANS, A DIGITIZED PAPER DOCUMENT OR ELECTRONIC RECORD OF ANY SUCH ACCOMPANYING DOCUMENT IS PRESENTED TO THE RECORDING OFFICER AT THE SAME TIME AS SUCH INSTRUMENT IS RECORDED BY ELECTRONIC MEANS; PROVIDED THAT EACH SUCH DOCUMENT OR RECORD SHALL BE PRESENTED TO THE RECORDING OFFICER AS A SEPARATE DIGITIZED PAPER DOCU- MENT OR ELECTRONIC RECORD UNTO ITSELF. 2. (A) A RECORDING OFFICER MAY RECORD A DIGITIZED PAPER DOCUMENT PURSUANT TO THIS SECTION IF SUCH DOCUMENT IS AFFIRMED AS A TRUE, ACCU- RATE AND COMPLETE COPY OF THE ORIGINAL PAPER DOCUMENT. THE AFFIRMATION CONCERNING SUCH DIGITIZED PAPER DOCUMENT SHALL BE MADE BY THE CUSTODIAN OF THE ORIGINAL PAPER DOCUMENT AND THE SIGNATURE OF THAT PERSON SHALL BE ACKNOWLEDGED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS ARTI- CLE GOVERNING ACKNOWLEDGEMENT OR PROOF OF A CONVEYANCE OF REAL PROPERTY. THE AFFIRMATION SHALL BE TRANSMITTED WITH SUCH DIGITIZED PAPER DOCUMENT AND SHALL BE RECORDED BY THE RECORDING OFFICER AS A PART OF THE DOCUMENT BEING RECORDED. THE AFFIRMATION CONCERNING SUCH DIGITIZED PAPER DOCUMENT MUST CONFORM SUBSTANTIALLY WITH THE FOLLOWING FORM, THE BLANKS BEING PROPERLY FILLED: AFFIRMATION CONCERNING DIGITIZED PAPER DOCUMENTS PRESENTED FOR RECORDING STATE OF NEW YORK) SS: COUNTY OF _______) I HEREBY AFFIRM, THAT THE DIGITIZED PAPER DOCUMENT(S) PRESENTED HEREWITH WAS (WERE) CREATED BY A SOFTWARE APPLICATION OR OTHER ELECTRONIC PROCESS WHICH STORES AN IMAGE OF THE ORIGINAL PAPER DOCUMENT AND WHICH DOES NOT PERMIT ADDITIONS, DELETIONS, OR CHANGES TO THE DIGI- TIZED IMAGE, OR IF ADDITIONS, DELETIONS, OR CHANGES ARE PERMITTED, A MEDIA TRAIL EXISTS WHICH CREATES AN ELECTRONIC RECORD WHICH MAKES IT POSSIBLE TO IDENTIFY THESE CHANGES. I AFFIRM THAT I HAVE PERSONALLY EXAMINED ALL PAGES OF THE ORIGINAL PAPER DOCUMENT(S) WHICH CONTAIN(S) A WET SIGNATURE AND COMPARED THEM TO ALL PAGES OF THE DIGITIZED PAPER DOCUMENT PRESENTED HEREWITH FOR RECORDING AND THE ATTACHED DIGITIZED PAPER DOCUMENT IS A TRUE, ACCURATE, AND COMPLETE ELECTRONIC IMAGE OF THE ORIGINAL PAPER DOCUMENT. I FURTHER AFFIRM THAT EACH SIGNATURE OR MARK ON THE ORIGINAL PAPER DOCUMENT IS A WET SIGNATURE OR MARK. SUBSCRIBED AND AFFIRMED, UNDER THE PENALTY OF PERJURY, by ________________________ on _________________________ PRINT NAME OF AFFIRMANT INSERT DATE ___________________________ SIGNATURE OF AFFIRMANT ON THE _____ DAY OF ______ IN THE YEAR ______ BEFORE ME PERSONALLY APPEARED __________________, TO MAKE THIS AFFIRMATION CONCERNING THES. 2373 4
DIGITIZED PAPER DOCUMENT PRESENTED FOR RECORDING AND/OR FILING, WITH WHOM I AM PERSONALLY ACQUAINTED, WHO, BEING BY ME FIRST DULY SWORN, DID DEPOSE AND SAY THAT HE/SHE RESIDES IN ____________________; AND THAT HE/SHE IS THE INDIVIDUAL DESCRIBED IN AND WHO EXECUTED THE FOREGOING AFFIRMATION CONCERNING DIGITIZED PAPER DOCUMENTS PRESENTED FOR RECORDING OR FILING. (SIGNATURE OF NOTARY) (B) FOR PURPOSES OF THIS SUBDIVISION, A CUSTODIAN OF THE ORIGINAL PAPER DOCUMENTS WHO MAKES THE AFFIRMATION REQUIRED BY THIS SUBDIVISION SHALL NOT BE REQUIRED TO KEEP, HOLD OR MAINTAIN SUCH DOCUMENTS AFTER THE DATE ON WHICH THE DIGITIZED PAPER DOCUMENTS OF SUCH ORIGINAL PAPER DOCU- MENTS ARE RECORDED OR FILED. 3. NOTHING IN THIS SECTION OR ANY OTHER PROVISION OF LAW SHALL BE CONSTRUED TO REQUIRE THE RECORDING BY ELECTRONIC MEANS OF INSTRUMENTS AFFECTING REAL PROPERTY. 4. WHERE ANY RECORDING OFFICER PERMITS OR REQUIRES INSTRUMENTS AFFECT- ING REAL PROPERTY AND ANY ACCOMPANYING DOCUMENTS TO BE PRESENTED FOR RECORDING OR FILING AS DIGITIZED PAPER DOCUMENTS OR ELECTRONIC RECORDS PURSUANT TO THIS SECTION, SUCH RECORDING BY ELECTRONIC MEANS SHALL BE IN ACCORDANCE WITH THE RULES, REGULATIONS, GUIDELINES, STANDARDS AND POLI- CIES ESTABLISHED BY THE ELECTRONIC FACILITATOR PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. 5. IN ORDER TO ENSURE CONSISTENCY IN THE STANDARDS AND PRACTICES OF, AND THE TECHNOLOGY USED BY RECORDING OFFICERS IN THE STATE, THE ELEC- TRONIC FACILITATOR, AS DESCRIBED IN SECTION THREE HUNDRED THREE OF THE STATE TECHNOLOGY LAW, SHALL, CONSISTENT WITH THE PROVISIONS OF ARTICLE THREE OF THE STATE TECHNOLOGY LAW, PROMULGATE RULES, REGULATIONS, GUIDE- LINES, STANDARDS AND POLICIES, AND AMENDMENTS THERETO, AS APPROPRIATE GOVERNING THE USE AND ACCEPTANCE OF DIGITIZED PAPER DOCUMENTS, ELECTRON- IC RECORDS AND ELECTRONIC SIGNATURES UNDER THIS ARTICLE, TAKING INTO CONSIDERATION: (A) THE MOST RECENT STANDARDS PROMULGATED BY NATIONAL STANDARD-SETTING BODIES SUCH AS, WITHOUT LIMITATION, THE PROPERTY RECORDS INDUSTRY ASSOCIATION; (B) THE VIEWS OF INTERESTED PERSONS AND GOVERNMENTAL OFFICIALS AND ENTITIES, INCLUDING BUT NOT LIMITED TO RECORDING OFFICERS AND REPRESENTATIVES OF THE STATE TITLE, LEGAL AND BANKING INDUSTRIES; AND (C) THE NEEDS OF COUNTIES OF VARYING SIZE, POPU- LATION, AND RESOURCES. SUCH PROMULGATION SHALL INCLUDE BUT NOT BE LIMIT- ED TO STANDARDS REQUIRING ADEQUATE INFORMATION SECURITY PROTECTION TO ENSURE THAT ELECTRONIC RECORDS OF INSTRUMENTS AFFECTING REAL PROPERTY DOCUMENTS ARE ACCURATE, AUTHENTIC, ADEQUATELY PRESERVED AND RESISTANT TO TAMPERING. 6. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO AUTHORIZE A RECORDING OFFICER TO FURNISH DIGITIZED PAPER DOCUMENTS OF THE REPORTS REQUIRED BY SECTION FIVE HUNDRED SEVENTY-FOUR OF THE REAL PROPERTY TAX LAW. SUCH REPORTS SHALL BE FURNISHED AS PAPER DOCUMENTS WITH THE REQUI- SITE NOTATIONS THEREON, EXCEPT WHERE THE STATE BOARD OF REAL PROPERTY SERVICES HAS AGREED TO ACCEPT DATA SUBMISSIONS IN LIEU THEREOF OR HAS PROVIDED FOR THE ELECTRONIC TRANSMISSION OF SUCH DATA PURSUANT TO LAW. S 4. Section 317 of the real property law is amended to read as follows: S 317. Order of recording. Every instrument, entitled to be recorded, must be recorded by the recording officer in the order and as of the time of its delivery to him OR HER therefor, and is considered recorded from the time of such delivery; PROVIDED, HOWEVER, THAT A DIGITIZED PAPER DOCUMENT OR AN ELECTRONIC RECORD SHALL BE CONSIDERED DELIVERED FOR PURPOSES OF THIS SECTION AT THE DATE AND TIME OF RECEIPT INDICATED ON ANS. 2373 5
ELECTRONIC OR OTHER WRITTEN NOTIFICATION WHICH SHALL BE PROVIDED BY THE RECORDING OFFICER IMMEDIATELY UPON RECEIPT OF A DIGITIZED PAPER DOCUMENT OR ELECTRONIC RECORD. S 5. Clause 1 of subparagraph a of paragraph 4 of subdivision (a) of section 8021 of the civil practice law and rules, as amended by chapter 288 of the laws of 2008, is amended to read as follows: (1) For recording, entering, indexing and endorsing a certificate on any instrument, five dollars, and, in addition thereto, three dollars for each page or portion of a page, and fifty cents for each additional town, city, block or other indices in which such instrument is to be indexed as directed by the endorsement thereon. On the assignment of a mortgage which assigns more than one mortgage or on a release of lease which releases more than one lease, then there shall be an additional fee of three dollars for every mortgage assigned or lease released in excess of one. PROVIDED, HOWEVER, THAT THERE SHALL BE NO FEE FOR A PAGE TRANSMITTED FOR RECORDING OR FILING THAT CONTAINS ONLY THE CERTIFICATION AS TO AUTHENTICITY OF DIGITIZED PAPER DOCUMENTS PRESENTED FOR RECORDING OR FILING PURSUANT TO SUBDIVISION TWO OF SECTION TWO HUNDRED NINETY-ONE-I OF THE REAL PROPERTY LAW. S 6. This act shall take effect on the two hundred seventieth day after it shall have become a law; provided, however that the electronic facilitator shall be authorized to promulgate rules, regulations, guide- lines, standards and policies to effectuate this act prior to such effective date.