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New laws and advances in technology make it possible to execute real estate transactions electronically. But while the documents that result are valid and enforceable, there’s disagreement whether they can be recorded in local land records. Most state laws define a recordable instrument as one that is in writing or on paper, casting doubt on whether electronic documents are valid to record.

The National Conference of Commissioners on Uniform State Laws, a nationwide organization comprised of more than 300 lawyers, judges and law professors, wants to end the confusion. The organization creates model and uniform laws, which it brings to the states in the hopes of passage. In 2004, the organization concluded more than two years of study and discussion by drafting the Uniform Real Property Electronic Recording Act (Urpera). The legislation is designed to close gaps and streamline real estate transactions.

GlobeSt.com talked to David D. Biklen, a Hartford, CT-based lawyer and chair of the committee working on the electronic recording act legislation, about technology and the problems he hopes the uniform law will solve.

GlobeSt: Two existing laws–the Uniform Electronic Transactions Act (UETA) and the Global National Commerce Act (E-sign)–already address the validity of electronic documents and electronic signatures. So why is it necessary for states to adopt the Uniform Real Property Electronic Recording Act?

Biklen: Because of the enactment of the UETA in most states and E-sign at the federal level, it’s now possible to have sale contracts, mortgage instruments, and promissory notes memorialized in electronic form with the electronic signatures. However, real estate transaction documents also have to be recorded or entered into the public record. That requires another step that is not clearly addressed by UETA or E-sign.

GlobeSt: So the Urpera was created to close that gap?

Biklen: Yes. The Urpera equates electronic documents and signatures to original paper documents and manual signatures so that electronic documents pertaining to real estate transactions may be electronically recorded.

GlobeSt: What else does it do?

Biklen: It empowers recorders to implement electronic recording and provides greater clarity for their authority to do so and establishes a state board to establish standards for electronic recording. It also recognizes that paper documents will likely continue to be accepted by many counties, even those that choose to e-record, for years to come, and allows for cross-storage of electronic and paper documents.

GlobeSt: How has it been received?

Biklen: Fifteen locations have adopted it. That includes 14 states–Arizona, Arkansas, Delaware, Florida, Idaho, Illinois, Kansas, Nevada, New Mexico, North Carolina, Tennessee, Texas, Virginia and Wisconsin–as well as Washington, DC. It’s highly likely more states will follow this year.

GlobeSt: What’s the status quo in the places that haven’t adopted the Urpera?

Biklen: The Property Records Industry Association estimates there are more than 3600 recording jurisdictions nationwide, usually counties or cities. Many of them are interested in converting traditional paper-based land recording systems to electronic form. However, far fewer have moved on to electronic recording, have some sort of system for e-recording in place or are in the process of converting to e-recording. In the areas where digital systems for recording have developed or are developing, it’s often been in spite of clear authority to create them. In short, the existing statutes are piece-meal.

GlobeSt: What’s the bottom line on the Urpera?

Biklen: The basic goal is to create legislation that expressly authorizes land records officials to accept records in electronic form, store electronic records, and set up systems for searching for and retrieving these records. The Urpera also ensures the development of coherent standards for e-recording that will function harmoniously between recording jurisdictions and across state lines. It modernizes real property law for the 21st century and has the potential to streamline real estate transactions.

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