H. B. 2971
(By Delegates Ferro, Storch and Walters)
[Introduced March 19, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §39A-4-1, §39A-4-2,
§39A-4-3, §39A-4-4, §39A-4-5, §39A-4-6 and §39A-4-7, all
relating to creating the Uniform Real Property Electronic
Recording Act; providing short title; defining terms;
clarifying validity of electronic documents and electronic
signatures; providing for recording of electronic documents;
requiring any county clerk implementing the provisions of the
act to comply with established standards; authorizing county
clerks to receive, index, store, archive and transmit
electronic documents; authorizing county clerks to allow
public access, search and retrieval of electronic documents;
allowing county clerks to convert paper documents accepted for
recording into electronic documents; authorizing county clerks
to collect electronically any tax or fee relating to
electronic recording of real property documents they are
authorized by law to collect; authorizing county clerks to
agree with other jurisdictions on procedures or processes
necessary for electronic recording of documents; creating the
Real Property Electronic Recording Standards Council to
develop the standards necessary to electronically record real
property documents; authorizing a legislative rule; providing
for a report and recommendations to the Legislature; providing
that members of the Real Property Electronic Recording
Standards Council pay their own expenses; setting forth areas
for consideration when adopting or changing standards;
providing for uniformity of application and construction of
the act; and providing that this act modifies, limits and
supersedes certain parts of the federal Electronic Signatures
in Global and National Commerce Act.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §39A-4-1, §39A-4-2,
§39A-4-3, §39A-4-4, §39A-4-5, §39A-4-6 and §39A-4-7, all to read as
follows:
ARTICLE 4. UNIFORM REAL PROPERTY ELECTRONIC RECORDING ACT.
§39A-4-1. Short title.
____This article may be cited as the Uniform Real Property
Electronic Recording Act.
§39A-4-2. Definitions.
____In this article:
____(1)"Commissioner" means the Commissioner of the Division of
Highways.
____(2)"Document" means information that is:
____(A) Inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable form;
and
____(B) Eligible to be recorded in the land records maintained by
the clerk of the county commission, herein after "county clerk" or
"clerk".
____(3) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
____(4) "Electronic document" means a document that is received by
the county clerk in an electronic form.
____(5) "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.
____(6) "Person" means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, public corporation, government or governmental
subdivision, agency, instrumentality or any other legal or
commercial entity.
____(7) "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.
§39A-4-3. Validity of electronic documents.
____(a) 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 satisfying the requirements of this article.
____(b) If a law requires, as a condition for recording, that a
document be signed, the requirement is satisfied by an electronic
signature.
____(c) A requirement that a document or a 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 that 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.
§39A-4-4. Recording of documents.
____(a) In this section, "paper document" means a document that is
received by the county clerk in a form that is not electronic.
____(b) A county clerk:
____(1) Who implements any of the functions listed in this section
shall do so in compliance with standards established by the Real
Property Electronic Recording Standards Council pursuant to section
five of this article;
____(2) May receive, index, store, archive and transmit electronic
documents;
____(3) May provide for access to, and for search and retrieval
of, documents and information by electronic means;
____(4) Who accepts electronic documents for recording shall
continue to accept paper documents as authorized by state law and
shall place entries for both types of documents in the same index;
____(5) May convert paper documents accepted for recording into
electronic form;
____(6) May convert information recorded before the clerk began to
record electronic documents into electronic form;
____(7) May accept electronically any fee or tax relating to
electronic recording of real property documents that the clerk is
authorized to collect; and
____(8) May agree with other officials of a state or a political
subdivision thereof, 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.
§39A-4-5. Administration and standards.
____(a) For the purpose of keeping the standards and practices of
county clerks in this state in harmony with the standards and
practices of recording offices in other jurisdictions that enact
substantially the Uniform Real Property Electronic Recording Act
and to keep the technology used by clerks in this state compatible
with technology used by recording offices in other jurisdictions
that enact substantially this act, the Commissioner of the Division
of Highways shall establish the Real Property Electronic Recording
Standards Advisory Committee, to, so far as is consistent with the
purposes, policies, and provisions of this article, assist in the
adoption, amendment and repeal of standards and practices.
____(b) The Commissioner, shall appoint at least sixteen persons
to serve on the committee. In selecting persons to serve on the
committee, the Commissioner shall appoint:
____(1) At least one person who is an attorney who specializes in
title work;
____(2) At least one person who is a specialist in geographic
information system (GIS) mapping;
____(3) A representative of the Secretary of State;
____(4) A representative of the County Clerks' Association;
____(5) A representative of the county commissioners' Association;
____(6) A representative of the State Auditor;
____(7) A representative of the Governor's Office of Technology;
____(8) A representative of the Division of Culture and History;
____(9) A representative of the Community Bankers of West
Virginia;
____(10) A representative of the West Virginia Bankers
Association;
____(11) A representative of the West Virginia Housing Development
Fund;
____(12) A representative of the Real Estate Division of the
Department of Administration;
____(13) A representative of the Property Tax Division of the
Department of Tax and Revenue;
____(14) A representative of the West Virginia Board of
Professional Surveyors;
____(15) A representative of the West Virginia Real Estate
Commission; and
____(16) At least one representative representing the mineral
extraction industry.
____(c) In establishing, amending and repealing standards and
practices for the recording documents in electronic form, storing
electronic records, and setting up systems for searching for and
retrieving these land records, the committee shall consider:
____(1) Standards and practices of other jurisdictions;
____(2) The most recent standards promulgated by national
standard-setting bodies such as the Property Records Industry
Association;
____(3) The views of interested persons and governmental officials
and entities;
____(4) The needs of counties of varying size, population and
resources; and
____(5) Standards requiring adequate information security
protection to ensure that electronic documents are accurate,
authentic, adequately preserved and resistant to tampering.
____(d) The Commissioner of the Division of Highways, or his or
her designee, shall serve as chair of the Real Property Electronic
Recording Standards Advisory Committee.
____(e) The Commissioner shall:
____(1) Provide administrative support to the committee; and
____(2) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
that contain the standards to implement this article.
____(f) Each person, agency, board and organization on the
committee shall cover his or her own expenses necessitated by participation on the committee.
____(g) The Commissioner shall submit a report to the Legislative
Manager on or before January 1 of each year until its tasks are
complete. The report shall include its efforts to adopt standards
in accordance with the requirements of this article and
recommendations for further legislative action necessary to
effectuate the purposes of this article.
§39A-4-6. Uniformity of application and construction.
____In applying and construing this Uniform Real Property
Electronic Recording Act, consideration must be given to the need
to promote uniformity of the law with respect to its subject matter
among states that enact it.
§39A-4-7. Relation to electronic signatures in global and national
commerce act.
____This article modifies, limits, and supersedes the federal
Electronic Signatures in Global and National Commerce Act (15
U.S.C. §7001, et seq.) but does not modify, limit or supersede
§101(c) of that act (15 U.S.C. §7001(c)) or authorize electronic
delivery of any of the notices described in §103(b) of that act (15
U.S.C. §7003(b)).
____NOTE: The purpose of this bill is to adopt the Uniform Real
Property Electronic Recording Act. Under the proposed bill, any
requirement of state law describing or requiring that a land record
document be an original, on paper, or in writing are satisfied by
a document in electronic form. In addition, any requirement that
the document contain a signature or acknowledgment is satisfied by
an electronic signature or acknowledgment. The bill authorizes the
clerk to accept electronic documents for recording and to index and
store those documents. The article does not provide a means of
funding the establishment or operation of an electronic recording
system. No single approach is recommended and in fact, the
commissioners recognized that the best approach for a state may
involve multiple systems. The bill requires the Real Property
Electronic Recording Standards Council to develop a legislative
rule containing standards for electronic recording to be used by
each county. The standards are to be developed with a vision
toward fostering intra-and interstate harmony and uniformity in the
electronic recording process. The council will engage in a
stakeholder type rule-making process to assure that all of the
affected parties have the opportunity to participate in the
process.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This bill is recommended for passage in the 2013 Regular
Session by the Joint Commission on Interstate Cooperation.