AR Senate Bill 1907 | NNA
Law

AR Senate Bill 1907

Notary Law Update: AR Senate Bill 1907

State: Arkansas

Summary:

House Bill 1907 repeals acknowledgment certificates in one section of the Arkansas Code and places replacement certificates in another. The bill was enacted to reduce the number of “defects” preventing such documents from being recorded by a county recorder or accepted into evidence by a court in a trial.

Signed:  April 08, 2013

Effective:  April 08, 2013

Chapter: Act No. 999

Affects:

Repeals Section 18-12-207 and amends Sections 14-15-402, 16-47-107 and 18-12-208 of the Arkansas Code

Changes:
  1. Repeals the acknowledgment certificates previously contained in AC 18-20-207.
  2. Makes conforming changes to the acknowledgment certificate contained in AC 16-47-107 for deeds, conveyances, deeds of trust, mortgages, and other instruments in writing affecting or purporting to affect the title to real estate situated in Arkansas that are acknowledged by corporations and prescribes this certificate for use also by business trusts, estates, partnerships, limited liability companies, associations, joint ventures, or any other legal entity.
  3. Adds new acknowledgment certificates in AR 16-47-107 for deeds, conveyances, deeds of trust, mortgages, and other instruments in writing affecting or purporting to affect the title to real estate situated in Arkansas that are acknowledged by (a) individuals; and (b) attorneys in fact. In the case of the individual certificate, substantive changes are introduced that were not previously in the form of certificate repealed under AC 18-12-207.
  4. Clarifies the following with respect to the certificate forms amended in AC 16-47-107: (a) The forms shall be good and sufficient; (b) The bracketed language in the forms suggests alternate language and is not required to be in an acknowledgment when the alternate language is not applicable; (c) The venue in the acknowledgment may list either the county where the Notary or other officer executing the acknowledgment resides or the county where the acknowledgment occurred.
  5. Clarifies that an acknowledgment affecting real or personal property shall not be found insufficient to satisfy AC 18-12-202 (the requirements of acknowledgments entitling a document to be recorded or read into evidence): (a) because the acknowledgment does not strictly comply with the form contained in AC 16-47-107 or omits the words “for the consideration, uses, and purposes therein mentioned or set forth” or uses similar words; (b) because the gender listed in the acknowledgment does not match the gender of the person acknowledging the instrument; (c) because the acknowledgment does not identify the title or position of the person acknowledging the instrument on behalf of an entity; or (d) where a good faith attempt at material compliance with the acknowledgment forms in AC 16-47-107(a), (b), or (c), as applicable, has been made and there is no factual dispute as to the authenticity of the signature of the person making acknowledgment.
  6. Clarifies that irrespective of the fact that an acknowledgment to a deed or other instrument may contain one or more of the defects set forth in AC 18-12-208, if a deed or other instrument is recorded, it shall: (a) Provide constructive notice to all parties of the matters contained in the deed or other instrument; and (b) Be treated as any other deed or instrument in writing under AC 16-47-110, and may be read into evidence in any court in this state without further proof of execution.
  7. Clarifies that a valid jurat may be a valid substitute for a certificate of acknowledgment for instruments recorded on or after the effective date.
Analysis:
It is not every day that a state revises its statutory acknowledgment certificates, but Arkansas HB 1907 does just that. It repeals acknowledgment forms in one section of the Arkansas Code and puts them in another. The new forms replace the repealed versions in substantial form (particularly the attorney in fact certificate), introduce substantive wording changes (particularly the individual acknowledgment) or leverage a prior certificate to be used in additional circumstances (the certificate now for use by corporations is now prescribed for use by business trusts, estates, partnerships, limited liability companies, associations, joint ventures, or any other legal entity).
 
HB 1907 also contains provisions that are intended to cut down on the number of “defects” which prevent documents containing acknowledgments to be recorded by a county recorder or read into evidence in a trial at court. For example, the new law states that an acknowledgment form will not be found insufficient if the form of the certificate does not strictly comply with the wording of the certificates in the law, if the gender listed in the acknowledgment doesn’t match the gender of the person named in the certificate, if the acknowledgment does not contain the title of the person acknowledging the signature on behalf of a corporation or other entity, or if a good faith attempt at material compliance with the form of the certificate has been made and there is no factual dispute that the individual acknowledging the signature has signed the document.
 
There are a couple of oddities in this new law that run counter to accepted notarial practice. First, the new law allows the Notary or notarial officer completing the acknowledgment certificate to list the name in the venue of the certificate the county where the Notary or officer resides or the county where the notarization actually took place. Second, the new law permits a jurat certificate to be substituted for an acknowledgment on a document submitted for recordation.
 
Because defects in certificates of acknowledgment affecting title to real property have resulted in the failure of such documents to provide constructive notice, the bill was declared to take immediate effect in order to protect property rights and interests.
 

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