Notarizing construction lien twice

A seemingly innocent amendment to Indiana law has created additional requirements for recording documents. The change specifically affects documents relating to real property, including deeds and — more importantly for our purposes — Indiana mechanics liens. The simple, unintended change of one word has caused headaches for anyone trying to file a property document. Until the legislature fixes the mistake, mechanics lien and notice documents will need to be notarized twice in Indiana.

For now, Indiana requires you to notarize documents twice

On March 18, 2020, Governor Eric Holcomb signed into law Senate Bill 340. The changes from this bill went into effect on July 1, 2020.

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Prior to the amendment, the statute read as that

“a conveyance, a mortgage, or an instrument of writing to be recorded must be … acknowledged by the grantor … or proved before a … notary….” (Emphasis ours.)

The new law, after the changes, changed or to and. That may seem innocuous, but it significantly changes the requirements under the Indiana Code §32-21-2-3.

Let’s break this down more simply.

Previously, the law required a filed document to have either (1) an acknowledgement OR (2) a proof of execution. Now the law requires both!

You must notarize the acknowledgement

An acknowledgment is when the signer acknowledges and signs a document in front of a notary public. The acknowledgement block will typically include the signer’s information, their capacity to sign the document if need be, where and when the document was executed, and some other verification language.

This is what most people think of when getting a document notarized.

You must also notarize for proof of execution

Proof of execution is a slightly outdated practice when it comes to authenticating documents. It’s typically used when the signing party can’t be present in front of a notary.

It allows a witness to verify in front of a notary to swear that the signature of the party is, in fact, the signature of the person who signed. Since the existence of notaries is more prevalent these days, this is rarely used.

Updating your Indiana lien forms

This oversight slipped by unnoticed for a short period of time. But since its discovery, advisories have been issued by the

Unfortunately, the Indiana General Assembly doesn’t reconvene until 2021. In the meantime, construction businesses in the state will need to update their lien and notice processes, and their forms.

Anyone exercising their mechanics lien rights in Indiana should take note of these changes. Any filed document, such as a filed Notice to Owner of Lien Rights, a Sworn Statement of Mechanics Lien, or a Lien Release should be sure to add a notary block for the witness signature section of the form.

Here’s a sample of the notary block for the witness signature:


EXECUTED in my presence:

_____________________________________

Witness Signature

_____________________________________

Witness Name Printed

STATE OF INDIANA

COUNTY OF______________

Before me, a Notary Public in and for said County and State, on DATE, personally appeared the above named WITNESS to the foregoing instrument, who, being duly sworn by me, did depose and say that he/she knows Grantor / Signer Name to be the individual(s) described herein and who executed the foregoing instrument; that said WITNESS was present and saw said Grantor / Signer Name execute the same; and that said WITNESS at the same time subscribed his/her name as a witness thereto.

____________________________________

Notary Signature

___________________________________

Notary Public Name Printed


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