WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
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.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.