SB0307

SENATE BILL 307

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Daniel Ivey-Soto

AN ACT

RELATING TO PUBLIC RECORDS; ADDING AND REMOVING THE TYPES OF DOCUMENTS THAT MUST BE ACKNOWLEDGED BEFORE BEING FILED AND RECORDED; REMOVING A NOTICE REQUIREMENT OF THE EXPIRATION OF A TAX LIEN; ALLOWING THE DIGITIZING OF CERTAIN INFORMATION FIFTY YEARS AFTER RECORDING; UPDATING CERTAIN CROSS-REFERENCES IN THE LAW; REQUIRING AND STANDARDIZING COUNTY RECORDING INDEXES, FORMS AND PROCEDURES; MAKING GOVERNMENTAL AGENCIES SUBJECT TO THE UNIFORM ELECTRONIC TRANSACTIONS ACT; REPEALING A REQUIREMENT THAT COUNTY COMMISSION MINUTES BE PUBLISHED IN A NEWSPAPER; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2011.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 7-1-39 NMSA 1978 (being Laws 1965, Chapter 248, Section 41, as amended) is amended to read:

"7-1-39. RELEASE OR EXTINGUISHMENT OF LIEN--LIMITATION ON ACTIONS TO ENFORCE LIEN.--

A. When any substantial part of the amount of tax due from a taxpayer is paid, the department shall immediately file, in the same county in which a notice of lien was filed, and in the same records, a document completely or partially releasing the lien. The county clerk to whom such a document is presented shall record it without charge.

B. The department may file, in the same county as the notice of lien was filed, a document releasing or partially releasing any lien filed in accordance with Section 7-1-38 NMSA 1978 when the filing of the lien was premature or did not follow requirements of law or when release or partial release would facilitate collection of taxes due. The county clerk to whom the document is presented shall record it without charge.

C. In all cases when a notice of lien for taxes, penalties and interest has been filed under Section 7-1-38 NMSA 1978 and a period of ten years has passed from the date the lien was filed, as shown on the notice of lien, the taxes, penalties and interest for which the lien is claimed shall be conclusively presumed to have been paid [The county clerk shall enter in his records a notice including the words "canceled by act of legislature"] and the lien is thereby extinguished. No action shall be brought to enforce any lien extinguished in accordance with this subsection."

SECTION 2. Section 14-2-6 NMSA 1978 (being Laws 1993, Chapter 258, Section 3, as amended by Laws 2011, Chapter 134, Section 3 and by Laws 2011, Chapter 181, Section 1 and also by Laws 2011, Chapter 182, Section 1) is amended to read:

"14-2-6. DEFINITIONS.--As used in the Inspection of Public Records Act:

A. "custodian" means any person responsible for the maintenance, care or keeping of a public body's public records, regardless of whether the records are in that person's actual physical custody and control;

B. "file format" means the internal structure of an electronic file that defines the way it is stored and used;

C. "inspect" means to review all public records that are not excluded in Section 14-2-1 NMSA 1978;

D. "person" means any individual, corporation, partnership, firm, association or entity;

[D.] E. "protected personal identifier information" means:

(1) all but the last four digits of a:

(a) taxpayer identification number;

(b) financial account number; or

(2) all but the year of a person's date of birth; and

(3) a social security number;

[E.] F. "public body" means the executive, legislative and judicial branches of state and local governments and all advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding, including political subdivisions, special taxing districts, school districts and institutions of higher education; and

[F.] G. "public records" means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained."

SECTION 3. Section 14-8-4 NMSA 1978 (being Laws 1901, Chapter 62, Section 18, as amended) is amended to read:

"14-8-4. ACKNOWLEDGMENT NECESSARY FOR RECORDING--

EXCEPTIONS.--

A. Any instrument of writing duly acknowledged may be filed and recorded. Any instrument of writing not duly acknowledged may not be filed and recorded or considered of record, though so entered, unless otherwise provided in this section.

B. For purposes of this section, "acknowledged" means notarized by a person empowered to perform notarial acts pursuant to the Notary Public Act or the Uniform Law on Notarial Acts.

C. [Notwithstanding Subsection A of this section] The following documents need not be acknowledged but may be filed and recorded:

(1) court-certified copies of a court order, judgment or other judicial decree;

(2) court-certified transcripts of any money judgment obtained in a court of this state or, pursuant to Section 14-9-9 NMSA 1978, in the United States district court for the district of New Mexico;

(3) land patents and land office receipts;

[(4) mining location notices and amended or additional notices made pursuant to Section 69-3-1 or 69-3-12 NMSA 1978 if properly signed by the locator;

(5)] (4) notice of lis pendens filed pursuant to Section 38-1-14 NMSA 1978;

(5) provisional orders creating improvement districts pursuant to Section 4-55A-7 NMSA 1978;

(6) notices of levy on real estate under execution or writ of attachment when filed by a peace officer pursuant to Section 39-4-4 NMSA 1978;

(7) surveys of land that do not create a division of land but only show existing tracts of record when filed by a professional surveyor pursuant to Section 61-23-28.2 NMSA 1978;

[(6)] (8) certified copies of foreign wills, marriages or birth certificates duly authenticated; and

[(7)] (9) instruments of writing in any manner affecting lands in the state filed pursuant to Section 14-9-7 NMSA 1978, when these instruments have been duly executed by an authorized public officer.

D. Any filing or recording permitted or required under the provisions of the Uniform Commercial Code need not comply with the requirements of this section.

E. Instruments acknowledged on behalf of a corporation need not have the corporation's seal affixed thereto in order to be filed and recorded."

SECTION 4. Section 14-8-9.1 NMSA 1978 (being Laws 2011, Chapter 134, Section 21) is amended to read:

"14-8-9.1. PUBLIC RECORDS--INSPECTION--EXCEPTIONS.--

A. [Except as provided in this section] All documents filed and not recorded in the office of the county clerk are public records, subject to disclosure pursuant to the Inspection of Public Records Act.

B. Documents recorded in the office of the county clerk are public records, except as provided in this section. As the technology becomes available, the county clerks of the various counties shall digitize recorded documents. The county clerk shall publicly post in the office of the county clerk and on the county's web page a notice that documents recorded in the office of the county clerk are public records, subject to inspection and disclosure.

C. Before digitizing or purchasing of documents by third parties, protected personal identifier information, as defined in the Inspection of Public Records Act, shall be redacted unless fifty years have elapsed from the date the document was filed or recorded in the office of the county clerk.

D. Documents containing health information that relates to and identifies specific individuals as patients are exempt as a public record pursuant to Section 14-6-1 NMSA 1978.

E. Discharge papers of a veteran of the armed forces of the United States recorded in the office of the county clerk shall be segregated from public records in the office of the county clerk. Discharge papers recorded before July 1, 2005 that have been commingled with public records and that remain unsegregated are available for inspection in the office of the county clerk but shall not be copied, digitized or purchased by any third party, except by those persons authorized in this section. As the technology becomes available, county clerks shall segregate commingled discharge papers from the public records in the office of the county clerk. Discharge papers recorded in the office of the county clerk are available only to:

(1) the veteran who filed the papers;

(2) the veteran's next of kin;

(3) the deceased veteran's properly appointed personal representative or executor;

(4) a person holding the veteran's general power of attorney; or

(5) a person designated by the veteran in an acknowledged statement to receive the records.

F. Death certificates that have been recorded in the office of the county clerk may be inspected, but shall not be copied, digitized or purchased by any third party unless fifty years have elapsed after the date [of death and the cause of death and any other medical information contained on the death certificate is redacted, in addition to redaction of protected personal identifier information] the death certificate was recorded in the office of the county clerk. Death certificates and other vital records recorded in the office of the county clerk are exempt from the restrictions contained in Subsection A of Section 24-14-27 NMSA 1978. The act of recording a death certificate in the office of the county clerk is considered a convenience; provided that no person shall be required to record a death certificate in the office of the county clerk to effect change of title or interest in property."

SECTION 5. Section 14-8-17 NMSA 1978 (being Laws 1921, Chapter 61, Section 1, as amended) is amended to read:

"14-8-17. DOCUMENTS RECORDED WITHOUT COST.--The county clerk shall record free of charge:

A. oaths of public office made pursuant to Article 20, Section 1 of the constitution of New Mexico;

B. the discharge papers of any person who was accepted for service and served in the armed forces of the United States for thirty days or more;

C. notices of state tax liens filed by the taxation and revenue department pursuant to Section 7-1-38 NMSA 1978;

[C.] D. tax delinquency lists filed by the county treasurer pursuant to Section 7-38-61 NMSA 1978;

[D.] E. notices and warrants issued by the secretary of workforce solutions for defaults on payments to the unemployment compensation administration fund filed pursuant to Section 51-1-36 NMSA 1978; and

[E.] F. a claim of lien under oath of the state engineer, artesian well supervisor or an officer of an artesian conservancy district filed pursuant to Section 72-13-8 NMSA 1978."

SECTION 6. Section 14-10-1 NMSA 1978 (being Laws 1903, Chapter 87, Section 1, as amended) is amended to read:

"14-10-1. INDEX.--[SEC. 20. That whenever in the opinion of the board of county commissioners of any county in the state it is necessary] For the convenience of the public and the better preservation of titles to real property, [to have] there shall be a complete and accurate county recording index made of all instruments of record affecting real property [they are hereby authorized to have such index] made by the county clerk of [said] each county."

SECTION 7. Section 14-10-2 NMSA 1978 (being Laws 1903, Chapter 87, Section 2, as amended) is amended to read:

"14-10-2. INDEX BOOKS.--[SEC. 21.] For the purpose of the county recording index [mentioned in the preceding] created pursuant to Section [there shall be provided index books]

14-10-1 NMSA 1978, the county clerk shall maintain a searchable database, which may include index books, and all instruments affecting title to real estate shall be indexed [in their regular order alphabetically arranged, as well as in their reverse order in the same manner]."

SECTION 8. Section 14-10-3 NMSA 1978 (being Laws 1903, Chapter 87, Section 3, as amended) is amended to read:

"14-10-3. COUNTY RECORDING INDEX--REQUIRED FIELDS.--[Sec. 22.] The [said] county recording index shall [be ruled and headed in the manner and form substantially as shown on the following form:

Time of Reception

Month Day Year Grantor of Mortgagor Grantees

Date of Instrument

or Mortgages Instrument Book Page Month Day Year

Description of Property

Subdivision of Sections and Number of Lots Town or City

Addition Sec. Tp. R. Acres Remarks]

Blk.

contain, at a minimum:

A. the following administrative fields:

(1) the book and page or instrument number; and

(2) the date and time of recordation; and

B. the following descriptive fields:

(1) the name of the grantor or grantors;

(2) the name of the grantee or grantees; and

(3) legal descriptions, references to recorded instruments in the county containing legal descriptions and miscellaneous information."

SECTION 9. Section 14-10-4 NMSA 1978 (being Laws 1903, Chapter 87, Section 4, as amended) is amended to read:

"14-10-4. ENTRIES TO THE INDEX--DESCRIPTION OF LANDS.--[SEC. 23.] Each name, descriptor or reference placed in a descriptive field constitutes a separate entry in the county recording index. All [town] real property or lands shall be entered and described in the [said] county recording index in the manner indicated, according to numbers, metes or bounds; [But] provided that where this is impossible from the nature of the description, [then] the tract or tracts may be described by some appropriate title [or the owner's name]."

SECTION 10. Section 14-10-5 NMSA 1978 (being Laws 1903, Chapter 87, Section 5, as amended) is amended to read:

"14-10-5. STANDARD FORM.--[SEC. 24.] The form of county recording index provided in [the two preceding Sections] Chapter 14, Article 10 NMSA 1978 shall be the standard form of index and shall be used throughout the state."

SECTION 11. Section 14-16-18 NMSA 1978 (being Laws 2001, Chapter 131, Section 18) is amended to read:

"14-16-18. ACCEPTANCE AND DISTRIBUTION OF ELECTRONIC RECORDS BY GOVERNMENTAL AGENCIES.--

[(a) Except as otherwise provided in Section 12(f), each governmental agency of this state shall determine whether, and the extent to which, it will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use and rely upon electronic records and electronic signatures.

(b) To the extent that a governmental agency uses electronic records and electronic signatures under Subsection (a), the] The state records administrator shall issue rules for the implementation of the provisions of the Uniform Electronic Transactions Act that shall apply to all governmental agencies; provided that a governmental agency, giving due consideration to security, may instead issue its own rules that specify:

[(1)] A. the manner and format in which the electronic records must be created, generated, sent, communicated, received and stored and the systems established for those purposes;

[(2)] B. if electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record and the identity of, or criteria that must be met by, any third party used by a person filing a document to facilitate the process;

[(3)] C. control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality and auditability of electronic records; and

[(4)] D. any other required attributes for electronic records [which] that are specified for corresponding nonelectronic records or reasonably necessary under the circumstances.

[(c) Except as otherwise provided in Section 12(f), the Uniform Electronic Transactions Act does not require a governmental agency of this state to use or permit the use of electronic records or electronic signatures.]"

SECTION 12. Section 39-4-4 NMSA 1978 (being Laws 1933, Chapter 13, Section 1) is amended to read:

"39-4-4. FILING NOTICE OF LEVY ON REAL ESTATE--RECORDING AND INDEXING--RELEASE OF LEVY.--

A. Any peace officer making a levy on real estate under execution or writ of attachment shall file a notice of [such] the levy in the office of the county clerk [and recorder] of the county where located, describing the real estate levied upon, the title and number of the case and the amount of the debt or judgment. A certificate of the facts recited in [such] the notice, under the hand and seal of [such] the peace officer, shall be sufficient to entitle [such] the instrument to record.

B. The county clerk shall record the notice of levy and shall index it in the records of the county clerk's office, and when so filed it shall be notice to the public of the facts therein recited.

C. When the debt for which a levy is made has been satisfied, or if directed by the plaintiff or the plaintiff's attorney, the peace officer shall file a release of the levy under the peace officer's official hand and seal, in the office of the county clerk."

SECTION 13. Section 39-5-23 NMSA 1978 (being Laws 1931, Chapter 149, Section 6) is amended to read:

"39-5-23. DUTY TO RECORD REDEMPTION.--

A. In all cases of redemption of lands from sale [under the terms and] pursuant to the provisions of [this act, it shall be the duty of the purchaser, his personal representatives or assigns, or the clerk of the district court, as the case may be, to make out an instrument in writing, under his hand and seal, evidencing such redemption, which shall be recorded in the office of the county clerk of the county wherein said land is situated, in the same manner as other instruments of writing affecting title to real estate are recorded, which recording fee, together with a fee of one dollar ($1.00) to the clerk when the redemption is made by depositing the money in the office of the clerk, shall be paid by the party redeeming] Sections 39-5-17 through 39-5-23 NMSA 1978:

(1) if the redemption is by payment to the purchaser, it is the duty of the purchaser within forty-five days of receiving payment to create an acknowledged instrument in writing evidencing the redemption; or

(2) if the redemption is by making deposit in the office of the clerk of the district court upon approval of the redemption by the district judge, it is the duty of the clerk of the court to create under the seal of the court an instrument evidencing the redemption.

B. It is the duty of the party redeeming to record the instrument evidencing the redemption in the office of the county clerk in the same manner as other instruments of writing affecting title to real estate."

SECTION 14. Section 55-9-525 NMSA 1978 (being Laws 2001, Chapter 139, Section 96, as amended) is amended to read:

"55-9-525. FEES.--

(a) Except as provided in Subsections (b) and (d) of this section, the fee for filing and indexing a record pursuant to [Section] Sections 55-9-501 through 55-9-526 NMSA 1978 in the office of the secretary of state is:

(1) if the record is communicated in writing in a form prescribed by the secretary of state:

(i) twenty dollars ($20.00) if the record consists of one, two or three pages;

(ii) forty dollars ($40.00) if the record consists of at least four pages, but no more than twenty-five pages; and

(iii) one hundred dollars ($100) if the record consists of more than twenty-five pages, plus five dollars ($5.00) for each page;

(2) if the record is communicated in writing, but not in a form prescribed by the secretary of state, double the amount specified in Paragraph (1) of this subsection for a record of the same length;

(3) if the record is communicated by facsimile or a similar medium and the use of that medium is authorized by filing-office rule, the amount specified in Paragraph (1) of this subsection for a record of the same length; and

(4) if the record is communicated in any other medium authorized by filing-office rule:

(i) ten dollars ($10.00) if the record consists of fifteen thousand or fewer bytes; and

(ii) twenty dollars ($20.00) if the record consists of more than fifteen thousand bytes.

(b) Except as otherwise provided in Subsection (d) of this section, the fee for filing and indexing an initial financing statement of the following kind is the amount specified in Subsection (a) of this section plus:

(1) one hundred dollars ($100) if the financing statement states that a debtor is a transmitting utility; and

(2) one hundred dollars ($100) if the financing statement indicates that it is filed in connection with a manufactured-home transaction.

(c) The number of names required to be indexed does not affect the amount of the fee set forth in Subsections (a) and (b) of this section.

(d) This section does not require a fee with respect to a record of a mortgage that is effective as a financing statement filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be cut under Subsection (c) of Section 55-9-502 NMSA 1978. However, the recording fees that otherwise would be applicable to the record of the mortgage apply.

(e) The secretary of state is authorized to establish additional fees for sale of data or records by adopting and publishing rules, pursuant to Section 55-9-526 NMSA 1978, to implement the requirements set forth in Chapter 55, Article 9 NMSA 1978.

(f) The fee for filing and indexing a record pursuant to Sections 55-9-501 through 55-9-526 NMSA 1978 in the office of the county clerk is as provided in Section 14-8-15 NMSA 1978."

SECTION 15. REPEAL.--Sections 4-38-9, 39-4-5 and 39-4-6 NMSA 1978 (being Laws 1897, Chapter 60, Section 16 [15] and Laws 1933, Chapter 13, Sections 2 and 3, as amended) are repealed.

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