South Dakota Legislative Update

South Dakota Legislative Update

The South Dakota legislature recently enacted the Uniform Real Property Electronic Recording Act (the “Act”) and amended its recording laws and its laws governing revolving loan accounts, effective July 1, 2014.

 

SOUTH DAKOTA SENATE BILL 68

 

“Document” means information that is:

  • Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
  • Eligible to be recorded in the land records maintained by the recorder.

 

“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

 

“Electronic document” means a document that is received by the register of deeds in an electronic form.

 

“Electronic Recording Commission” and “Commission” means the commission consisting of 9 voting members that will adopt standards to implement procedures for recording electronic documents with the register of deeds.

 

“Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.

 

“Paper document” means a document that is received by the register of deeds in a form that is not electronic.

 

“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

 

“Register of deeds” means the county register of deeds for the county in which a document is received.

 

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

 

If a law requires, as a condition for recording, that a document be an original, be on paper, or another tangible medium, or be in writing, the requirement is satisfied by an electronic document.  If a law requires or refers to something related to tangible media, the requirement or reference is satisfied by an electronic document.  If a law requires, as a condition for recording, that a document be signed, the requirement is satisfied by an electronic signature.

 

A requirement that a document or signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform the act, and all other information required to be included, is attached to or logically associated with the document or signature.  A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.

 

In a proceeding, evidence of a document or signature may not be excluded solely because it is in electronic form.

 

The above provisions do not require that a register of deeds adopt the process of recording electronic documents.

 

A register of deeds may:

  • Receive, index, store, archive, and transmit electronic documents.
  • Provide for access to, and for each search and retrieval of, documents and information by electronic means;
  • Convert paper documents accepted for recording into electronic form;
  • Convert into electronic form information recorded before the register of deeds began to record electronic documents;
  • Accept electronically any fee or tax that the register of deeds is authorized to collect; and
  • Agree with other officials of a state or a political subdivision, or of the United States, on procedures or processes to facilitate the electronic satisfaction of prior approvals and conditions precedent to recording and the electronic payment of fees and taxes.

 

A register of deeds who accepts electronic documents for recording will continue to accept paper documents as authorized by state law and will record both electronic documents and paper documents in the same manner as provided for by law.

 

Electronic documents recorded under the Act, the federal ESIGN Act, as of January 1, 2014, or any statute that may apply before the establishment of standards of the Act by the Commission will not be invalidated.

 

Each document that a register of deeds accepts for recordation will be considered recorded despite its failure to conform to one or more requirements of the Act or South Dakota law governing the recording of paper documents, unless the document is not sufficiently legible or cannot be reproduced as a readable copy using the register of deeds’ current method of reproduction.

 

The Act modifies, limits, and supersedes the federal ESIGN Act, as of January 1, 2014, but does not limit modify, limit, or supersede the ESIGN Act’s disclosure requirements or authorize electronic delivery of the notice of default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by a primary residence of an individual.

 

Each instrument entitled by law to be recorded must be recorded during the county government’s office hours in the order and as of the date and time when the instrument is received by the register of deeds for that purpose.

 

Unless otherwise provided by law, a paper document that is to be recorded or filed in the register of deeds’ records must contain the original signatures of the parties who execute the document and if required to be acknowledged or further proven, original signatures of the notary public, witnesses, or other officer taking an acknowledgment.  However, any filed and recorded UCC financing statement need not contain the signatures of the debtor or the secured party or an acknowledgment.

 

An original signature may not be required if the document is attached as an exhibit to an affidavit or other document that has an original that is acknowledged, sworn to with a proper jurat, or proved according to law.

 

Each register of deeds must plainly endorse each instrument received for record, upon receipt, the date and time of reception of the instrument, and an identifying number.  The identifying number may be a unique instrument number or book and page number, or both, that clearly identifies the specific instrument.  The register of deeds will enter the identifying number as part of the entry relating to the instrument in the appropriate indexes maintained by the register of deeds.  The document will indicate whether the instrument was received by electronic transmission and the number of pages recorded or filed with that instrument.

 

SOUTH DAKOTA HOUSE BILL 1131

 

A credit card need not be issued to establish a revolving loan account arrangement made by a bank.