ELECTRONIC
RECORDING –
STATUTORY SOLUTIONS
Patricia Brumfield Fry
Professor of Law Emeritus
University of MissouriColumbia
© Patricia Brumfield Fry, 2007
Perceived Obstacles to eRecording
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
Statutes of Frauds
Agreement to use electronic media
Original documents
• Negotiable Notes
• Return of document upon satisfaction

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Notaries
Recording
• “The” document
• Authority
The Statutes
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Uniform Electronic Transactions Act,
approved by NCCUSL in 1999 (UETA)
[enacted in all states except GA, IL, NY
and WA]
Electronic Signatures in Global and
National Commerce Act, enacted in 1999
(E-SIGN)
Uniform Real Property Electronic
Recording Act, approved by NCCUSL in
2004 (URPERA) [enacted in AZ, DE, KS,
NC, TX, VA and WI, plus Dist. Of
Columbia, to date]
Statutes of Frauds
Amongst other things, require that
any transfer of an interest in land be
signed
 Traditionally involved paper, penand-ink
 UETA and E-SIGN

• Assure that electronic signatures and
electronic transactions have same legal effect
as paper signatures and paper transactions
• Assure that electronic records have same legal
effect as paper records
Legal Effect – UETA §7, E-SIGN
§7001(a)
7(a) “A record or signature may not be denied
legal effect or enforceability solely because it
is in electronic form.”
 7(c) “If a law requires a record to be in
writing, an electronic record satisfies the law.”
 7(d) “If a law requires a signature, an
electronic signature satisfies the law.”

Electronic Signatures
“Electronic signature” means an electronic
sound, symbol, or process attached to or
logically associated with a record and executed
or adopted by a person with the intent to sign
the record. UETA §2(8)
 E-SIGN §7001(c)(6) excludes oral
communications and recordings from use
when consumer consent is sought

Consent to Use Electronics
UETA §5 - Act does not require electronic
record or signature. UETA applies only if each
party agrees to use electronic means
 E-SIGN §7001(b) is to the same effect
 E-SIGN §7001(c) outlines specific procedures
which must be followed for consumer consent
to deal electronically

Originals

Specific legal rights and liabilities
attach to negotiable instruments and
law not preempted by UETA and ESIGN requires paper and pen.
• Of concern to mortgage bankers,
secondary markets
• UETA and E-SIGN contain provisions
permitting those specific rights to exist
in an electronic environment
Originals cont’d
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Recording statutes refer to “the deed” or
“the conveyance” and the like.
Every state has a statute requiring return
of the document marked paid upon
satisfaction
UETA §12 and E-SIGN §7001(d)(1) and
(3) specify that if a law requires originals
“that law is satisfied by an electronic
record . . .”
Notarization and Acknowledgment
If a law requires a signature or record to be
notarized, acknowledged, verified, or made
under oath, the requirement is satisfied if the
electronic signature of the person authorized to
perform those acts, together with all other
information required to be included by other
applicable law, is attached to or logically
associated with the signature or record.
UETA §11, E-SIGN §7001(g)
Notaries cont’d
A requirement that a document or a signature . . . Be
notarized, acknowledged . . . 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.
URPERA §3(c)
Governmental Agencies - UETA
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§17: Each governmental agency may decide whether
and to which extent it will create and retain electronic
records.
§18(a). Each governmental agency may decide
whether and to which extent it will send, accept or
retain electronic records and signatures.
§18(b). Each governmental agency may specify
manner, format, systems, processes and procedures.
Enactment of UETA §§ 17-19
Enacted in some form in AL, AK, FL, HI, ID,
IN, IA, KY, LA, ME, MD, MN, MS, MT, NE,
NH, NJ, NM, ND, OK, OR, PA, RI, SD, TN,
UT, VA, WY and District of Columbia
 Other states have enacted statutes, before or
after UETA, granting authority to recorders

Governmental Agencies - § 7004
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(a)” . . . nothing in this title limits or
supersedes any requirement by a . . . state
regulatory agency that records be filed with
such agency . . . in accordance with specified
standards or formats.”
(b)(1) State regulatory agency, if authorized by
law, may issue rules interpreting § 7001,
subject to stated limits
Governmental Agencies cont’d
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(b)(2) State regulatory agency “is preempted by [§
7001] from adopting any regulation . . . unless” the
regulation
• Is consistent with § 7001
• Does not add to the requirements of § 7001
• Methods selected are substantially equal to methods
imposed on paper and will not impose unreasonable costs
on electronics
• Agency finds substantial justification for regulation
• Methods do not require or grant greater legal status to any
particular technology
Governmental Agencies cont’d
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(b)(3) State regulatory agency may interpret to
specify performance standards to insure
accuracy, integrity and access
These performance standards may impose a
specific technology if (i) serves important
governmental interest and (ii) substantially
related to the achievement of that interest.
Governmental Agencies cont’d
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(c)(1) “[N]othing . . . shall be construed to
grant any . . . state regulatory agency authority
to impose or reimpose any requirement that a
record be in a tangible printed or paper form.”
NOTE: E-SIGN contains no definition of
“state regulatory agency”
State v. Federal Law?
–
E-Sign § 7002 provides that State law controls
• (a) If a State enacts UETA uniformly or
• (b) If a State enacts another law consistent with ESign § 7001 and “such alternative procedures or
requirements do not require, or accord greater legal
status or effect to, the implementation or
application of a specific technology . . . [for]
creating, storing, generating, receiving,
communicating, or authenticating electronic . . .”
UNIFORM REAL PROPERTY
ELECTRONIC RECORDING ACT
(URPERA)
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Establishes (again) validity of electronic documents
Authorizes (again) electronic recording of paper or
electronic documents
Authorizes establishment of standards
Contacts
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Patricia Brumfield Fry
• Office: 573 884 7761
• Fax: 573 882 4984
• Email: fryp@missouri.edu
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National Conference of Commissioners on Uniform
State Laws
• Office: 312 915 0195
• Fax: 312 915 0187
• Web: www.nccusl.org