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Recording Act Amended
The Recording Act has been substantially revised by P.L. 2011, c. 217 (eff. May 1, 2012), enacting Title 46, Chapters 26A, 26B and 26C, and many pre-existing sections of Title 46 have been repealed by the legislation. (The version in effect before May 1, 2012 will be referred to herein as the “Old” [Recording] Act, and the version in effect thereafter (P.L. 2011, c. 217) will be referred to herein as the “New” [Recording] Act.)
The New Act consists of three new Chapters of Title 46: 26A (“Recording”); 26B (“Maps”); and 26C (“General and Transitional”). The first chapter (26A) attempts to modernize and re-codify numerous sections of the Old Act, and is the principal focus of the discussion in the following paragraphs. Chapter 26A (N.J.S.A. 46:26A-1 et seq.) also revises the Notice of Settlement Act (discussed elsewhere in this edition). Chapter 26B (N.J.S.A. 46:26B-1 et seq.) revises the Map Filing Law; Chapter 26C (N.J.S.A. 46:26C-1 et seq.) contains miscellaneous provisions, transitional rules, etc. However, it should be noted that the New Act does not purport to change dramatically the operation and effect of the Old Act. Rather, it is intended to conform the statutory scheme with the prevailing custom and practice under the existing system, while making certain improvements therein.
The New Act creates a legislatively-sanctioned framework for the use of computerized recording systems, as well as the recording of fully electronic documents (i.e., documents created, signed and transmitted exclusively by electronic means, never having been rendered to paper). Thus, references found in the Old Act to separate sets of books and separate databases for different types of documents have been eliminated as incompatible with computerized recording techniques. Similarly, the computerized index obviates the need for marginal notations which were formerly placed on paper copies of recorded documents. N.J.S.A. 46:26A-6; - 8. The New Act’s orientation toward computeriza- tion may be seen in the definitions of “document” and “recorded” (discussed below), as well as by the use of terms such as “image” throughout Chapter 26A. Furthermore, 26A requires the Division of Archives and Records Management [“DARM”] of the Department of State to establish “...rules, standards and procedures for recording in conjunction and collaboration with the county recording officers”. Chapter 26C requires DARM to adopt administrative regulations “... to establish format and technical requirements for recorded documents...”. N.J.S.A. 26A-6e(3); 26C-1 (respectively). It is likely that fully electronic recording will not become widely available until the regulations concerning same are published.
Chapter 26A begins with definitions of “document” and “recorded”. The former includes both paper and electronic documents. The latter states that a document is “recorded” if “(1) the document or its image has been placed in the permanent records of the recording office, and (2) the document has been indexed...”. N.J.S.A. 46:26A-1b. Thus, a document is not “recorded” until it is “indexed”. This is followed by a non-exhaustive list of recordable instruments, including “...any other document that affects title to any interest in real property in any way...”, etc. N.J.S.A. 46:26A-2.
At the heart of the New Act is N.J.S.A. 46:26A-12 (“Effect of Recording”), which states:
“a.      Any recorded document affecting the title to real property is, from the time of recording, notice to all subsequent purchasers, mortgagees and judgment creditors of the execution of the document recorded and its contents.
“b.     A claim under a recorded document affecting the title to real property shall not be subject to the effect of a document that was later recorded or was not recorded unless the claimant was on notice of the later recorded or unrecorded document.
“c.      A deed or other conveyance of an interest in real property shall be of no effect against subsequent judgment creditors without notice, and against subsequent bona fide purchasers and mortgagees forvaluable consideration without notice and whose conveyance or mortgage is recorded, unless that conveyance is evidenced by a document that is first recorded.”
The foregoing is intended to comport with the corresponding sections of the Old Act (repealed by P.L. 2011, c. 217), N.J.S.A. 46:21-1 and 46:22-1.
Under the Old Act, it was sometimes said that instruments which are not mentioned in the list of recordable documents found in N.J.S.A 46:16-1 (such as options or memoranda of leases) did not impart constructive notice, even though they were entitled to be recorded under 46:16-2 (both repealed by P.L. 2011, c. 217). In any event, there is no such distinction under the New Act. All documents, once recorded, impart constructive notice. N.J.S.A. 46:26A-2;-2p;- 12.
The concept of the cover sheet, already in use in a majority of counties, is formalized by the New Act, but on a nominally optional basis. N.J.S.A. 46:2A-5b. Nevertheless, “if the person submitting the document for recording does not include a cover sheet or electronic synopsis, the recording officer shall charge an additional fee of $20 for the additional cost of indexing...”. N.J.S.A. 46:2A-5c. The cover sheet (or electronic synopsis) must include: (1) the nature of the document; (2) the date of the document; and (3) the names of the parties thereto and any other names by which the document is to be indexed. Note that N.J.S.A. 46:26A-8g permits a document to be indexed by additional names, provided that an affidavit is submitted “... attesting to facts establishing the specific relationship of the names to the document submitted...”.
The New Act also sets forth document recording requirements, which are substantially similar to those in effect under the Old Act. However, in the case of a deed, it is no longer necessary that the name and signature of the preparer appear on the first page. It is sufficient if the name of the preparer appears on any page of the deed. N.J.S.A. 46:15-1.1, repealed by P.L. 2011, c. 217 and replaced by N.J.S.A. 46:26A-3.
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