TITLE
1 GENERAL GOVERNMENT
ADMINISTRATION
CHAPTER
11 E-GOVERNMENT
PART
2 REAL PROPERTY ELECTRONIC
RECORDING
1.11.2.1 ISSUING AGENCY:
State Commission of Public Records - State Records Center and Archives
and Department of Information Technology
[1.11.2.1
NMAC - N, 9/15/2008]
1.11.2.2 SCOPE:
all county clerks who accept and record real property records electronically.
[1.11.2.2
NMAC - N, 9/15/2008]
1.11.2.3
STATUTORY AUTHORITY:
Section 14-9A-5 NMSA 1978 of the Uniform Real Property
Electronic Recording Act gives the authority to establish standards for the
purpose of implementing the Uniform Real Property Electronic Recording Act to
the state commission of public records and the department of information
technology in consultation with county clerks.
[1.11.2.3
NMAC - N, 9/15/2008]
1.11.2.4 DURATION:
Permanent
[1.11.2.4
NMAC - N, 9/15/2008]
1.11.2.5 EFFECTIVE
DATE: September 15, 2008 unless a later date is
cited at the end of a section.
[1.11.2.5
NMAC - N, 9/15/2008]
1.11.2.6 OBJECTIVE:
A. To keep the standards and practices of county
clerks in New Mexico in agreement with the standards of national
standard-setting bodies, such as PRIA, and in agreement with nationally accepted best
practices in electronic real property recording.
B. To keep the
technology used by county clerks in New Mexico compatible with technology used
by recording offices nationally that
have enacted the Uniform Real Property Electronic Recording Act.
C. To keep the
standards and practices of county clerks in New Mexico in agreement with
professional standards and best practices in electronic records management.
D. To ensure
electronic instruments that are public records filed and recorded by a county
clerk are accessible.
E. To manage and
retain real property records in accordance with established records management
standards for electronic records (1.14.2 NMAC and
1.13.3 NMAC) and the records retention and disposition schedule
adopted by the commission of public records 1.19.3 NMAC.
[1.11.2.6
NMAC - N, 9/15/2008]
1.11.2.7 DEFINITIONS:
A. "ACH" (automated clearing house) means
a network processing and
delivery system that provides for the distribution and settlement of electronic
credits and debits among financial institutions.
B. "Authentication" means the act of tying an action or result to the
person claiming to have performed the action.
Authentication generally requires a password or encryption key to
perform, and the process will fail if the password or key is incorrect.
C. "Authorized filer" means
a party who has entered into a MOU with a county
clerk pursuant to 1.11.2.10 NMAC.
D. "Digital electronic document" means an instrument containing information that is
created, generated, sent, communicated, received, or stored by electronic
means, but not created in original paper form.
E. "Digitized electronic document" means
a scanned image of the original document.
F. "Document" means
recorded information regardless of medium or characteristics that is:
(1) inscribed on a tangible
medium or that is stored in an electronic or other medium and that is
retrievable in perceivable form; and
(2) eligible
to be recorded in the real property records maintained by a county clerk.
G. "E-government"
means government's use of information technology to conduct business or
exchange information with citizens, businesses or other federal, state and
local government offices.
H. "Electronic" as defined in the Uniform Real
Property Electronic Recording Act means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic or similar
capabilities.
I. "Electronic recording delivery system" means an automated electronic recording system
implemented by a county clerk for recording instruments, and for returning to the party requesting the recording,
digitized or digital electronic instruments.
J. "Electronic document" means
a document that is received by a county clerk in an electronic form.
K. “Electronic signature” means an electronic sound,
symbol or process attached to or logically associated with a document and
executed or adopted by a person with the intent to sign the document.
L. "FTP" means file
transport protocol.
M. "HTTPS" means
hypertext transport protocol secure.
N. "Instrument" as
used in 1.11.2 NMAC means all deeds, mortgages, leases of an initial
term plus option terms in excess of five years, or memoranda of the material
terms of such leases, assignments or amendments to such leases, leasehold mortgages,
United States patents and other writings affecting the title to real estate
required to be recorded in the office of the county clerk of the county or
counties in which the real estate affected thereby is situated.
O. "Memorandum of understanding (MOU)" means a legal document outlining the terms and
details of an agreement between parties, including each parties requirements
and responsibilities.
P. "Metadata" means “data about data”; it is information that describes another
set of data. Metadata is descriptive
information that facilitates the management of and access to other
information. In the electronic
recording context, metadata may be generated automatically or created manually
and it may be internal or external to the digital object itself. Regardless of
how it is created or stored, maintaining accurate and reliable metadata is
essential to the long-term preservation of electronic recordings.
Q. "MISMO" means
mortgage industry standards maintenance organization.
R. "PDF"(portable document format) means a file format
created for document exchange. PDF is a
fixed-layout document format used for representing two-dimensional documents in
a manner independent of the application software, hardware, and operating
system.
S. "PDF/A" means a subset of PDF that is an electronic document file format for long-term preservation of electronic documents that
ensures the documents can be reproduced the exact same way in years to
come. A key element is the requirement
for PDF/A documents to be 100 percent self-contained. All of the information necessary for
displaying the document in the same manner every time is embedded in the file.
This includes, but is not limited to, all content (text, raster images and
vector graphics), fonts, and color information.
T. "PRIA" means
the property records industry association.
PRIA is a not-for-profit association representing
business and government members of the property records industry. The main goal of the association is to
facilitate recordation and access to public real property records through
research and the development and implementation of national standards and
systems for the industry.
U. "PKI" (public key
infrastructure) means a method of enabling a user of an unsecured public network such
as the Internet to securely and privately exchange data and money through the
use of a public and a private cryptographic key pair that is obtained and
shared through a trusted authority. The public key infrastructure provides for
a digital certificate that can identify an individual or an organization and
directory services that can store and, when necessary, revoke the certificates.
V. "Schema" means a method for
specifying the structure and content of specific types of electronic documents
which use XML.
W. "SMART
Doc™" means a technical framework for representing documents in an
electronic format. This format links
data, the visual representation of the form, and signature. The visual representation of the documents
can utilize a variety of technologies such as XHTML,
PDF, and TIFF. Previously SMART docs™
were called eMortgage documents. In order to better describe the actual
capabilities of the technology, the word “eMortgage”
was replaced by the acronym “SMART” which represents: securable, manageable, archivable, retrievable, and transferable.
X. "UETA" (Uniform Electronic Transaction Act) means a
body of recommended legislation drafted in 1999 by the national conference of
commissioners on uniform state laws (NCCUSL) for
adoption by state legislatures. UETA allows electronic documents and digital signatures to
stand as equals with their paper counterparts.
Y. "URPERA" (Uniform Real Property Electronic Recording
Act) means a body of recommended legislation drafted in 2004 by the
national conference of commissioners on uniform state laws (NCCUSL)
for adoption by state legislatures. URPERA authorizes recorders to accept electronic documents
for recording in accordance with established standards. New Mexico adopted a modified version of URPERA during the 2007 legislative session. (see Laws 2007, Ch. 261, Section 1.)
Z. "XHTML"
means extensible hypertext mark-up language.
AA. "XML"
(extensible markup language)
means a computer language used to create markup languages. XML allows developers to specify a document
type definition or schema in order to devise new markup languages for general
or specific uses.
[1.11.2.7
NMAC - N, 9/15/2008]
1.11.2.8 GENERAL
PROVISIONS: In accordance with the provisions of the URPERA the commission of public records and the department
of information technology adopted the electronic recording standards issued by PRIA as the foundation for the standards promulgated as
rule under 1.11.2 NMAC.
A. A county clerk
may accept instruments for filing and recording electronically in accordance
with the requirements of the Uniform
Real Property Electronic Recording Act (14-9A-1 NMSA
1978) and 1.11.2 NMAC.
B. Any real
property record created by electronic recording means shall meet established
records management standards for electronic records (1.14.2 NMAC
and 1.13.3 NMAC) and record retention requirements
identified in the local government records retention and disposition schedule
for county clerks, 1.19.3 NMAC.
C. A participating
county clerk shall retain control and ownership of the electronic records
created or received by the office of the county clerk and shall be responsible
for their maintenance as public records pursuant to 1.14.2 NMAC,
1.13.3 NMAC and 1.15.2 NMAC.
[1.11.2.8
NMAC - N, 9/15/2008]
1.11.2.9 ELECTRONIC RECORDING MODELS: Authorized
filers shall submit real property records for electronic filing and recordation
utilizing one of three methods described below. The methods are based on levels of
automation and transaction structures identified in the PRIA
URPERA enactment and E-recording standards
implementation guide© utilized nationally to implement electronic
recording.
A. Method one. An authorized filer transmits to the county
clerk a digitized (scanned) document of an original document created in paper,
signed in ink and notarized. The county
clerk completes the recording process in the same way as paper using the imaged
copy as the source document and determines the recording fees. Fees are usually paid from an escrow or ACH
account the authorized filer establishes with the county clerk. Documents may be submitted in batches. Once the county clerk accepts the documents
for recording the scanned image is “burned” with the recording information,
including recording date and time as well as the unique recording reference
number, such as book and page number or instrument number. Indexing is
performed by the indexing staff of the clerk's office. The recorded image is returned to the
authorized filer. Usually a recording receipt, together with the recording
endorsement data, the authorized filer uses the data to create and print a
label with the recording endorsement information. The label is affixed to the
paper document, which is then processed as usual by the authorized filer.
B. Method two. An authorized filer transmits to the county
clerk a digitized (scanned) document of an original document created in paper,
signed in ink and notarized wrapped in an XML wrapper containing the data
necessary for processing, indexing and returning the document. In the case of a scanned paper document,
method 2 further extends method 1 by adding data that improves the process,
specifically the indexing process in the clerk's office. The recordable
documents are generally delivered to the county clerk's website by whatever
means the parties agree, including HTTPS, web services, and FTP. Documents may be submitted in batches. Authentication of the submitter is required
based on an account and personal identification number. Digital signatures and certificates may be
used. The documents are stored in a
secure area on the clerk's web site until the clerk's system retrieves them.
Once imported into the clerk's system, the clerk's system handles the recording
functions. The system imports the data
from an XML wrapper, including index data.
The indexing process is partially automated, but the image must be
visually inspected to determine that it meets recording requirements as well as
possibly to validate against the data in the XML wrapper. If a document meets the requirements, it is
recorded. The recording information is “burned” onto the image and returned to
the authorized filer by means agreed upon by the parties in a MOU. Fees are paid
based on the method agreed upon through the MOU,
usually fees are paid from an escrow or ACH account the authorized filer
maintains with the county clerk.
C. Method
three. An authorized filer transmits to
the county clerk digital electronic documents that have been created, signed
and notarized electronically along with the electronic indexing
information. Real property documents are
typically generated on a vendor's document preparation system usually in XHTML format. [Currently the XHTML
format (XML data - HTML formatting) is used or other similar formats, such as MISMO's SMART Doc format or PDF's
intelligent document that incorporate the XML data and link it to the content
displayed.] The submitter logs on
to the system and enters the information necessary to generate the
document. Once the document has been
generated, the person signs it if he or she has the authority, or notifies the
person with signing authority to sign.
Secure access is required for all parties that must sign the document
because signing is done by digital signature.
Once the documents are electronically signed and notarized, they are
released for recording. The document
preparation system compares each document against recording rules to ensure its
recordability and then calculates recording
fees. Documents may be submitted in
batches. Documents received at the
county clerk's system are re-checked against the requirements to determine
whether or not they may be recorded. If
not, they are rejected and returned to the authorized filer. Otherwise they are
accepted for recording and the data for recording is extracted from the
documents and passed to the county clerk's recording system. The endorsement data is received from the
clerk's system and entered onto the respective documents usually in XML format. Fees are paid based on the method agreed upon
through the MOU.
[1.11.2.9 NMAC - N, 9/15/2008]
1.11.2.10 MEMORANDUM
OF UNDERSTANDING: A filer shall apply to a participating county
clerk to be enrolled in the participating county clerk's electronic filing and
recording program.
A. The authorized
filer and a participating county clerk shall enter into a memorandum of
understanding (MOU) relating to the terms and
conditions of participation in the county clerk's electronic filing and
recording program. The provisions of
the MOU shall be consistent with 1.11.2 NMAC and the Uniform Real Property Electronic Recording
Act. At a minimum the MOU shall address the items described immediately below.
(1) Instruments permitted to be filed
electronically. The agreement shall identify
the types of real property records permitted to be filed electronically, which
may be amended from time to time by the clerk.
(2) Payment of filing fees. The MOU shall
require the payment of recordation taxes, recording fees or clerk's fees
assessed by statute, and establish the manner and method of such payment.
(3) Notarization. The MOU shall
provide that electronic real property recordings shall comply with requirements
for notarization pursuant to New Mexico statutes and rules adopted by the
secretary of state.
(4) Notification of submission for
recordation. The MOU
shall provide that the clerk shall issue to the authorized filer an electronic
or other written notification that the electronic document has been received by
the clerk. The notification shall
include the date and time of the receipt of the electronic instrument.
(5) Notification of rejection. The MOU will
provide that the electronic instruments submitted for recordation shall be
rejected if they fail to meet 1.11.2 NMAC image or
file-format specifications and security requirements; comply with New Mexico
statute requirements; or comply with the requirements established by the county
clerk for electronic recording of real property records.
(6) Transmittal sheet requirements. The MOU shall
provide that authorized filers shall comply with transmittal sheet requirements
outlined in Subsection C of 1.11.2.10 NMAC.
(7) The MOU shall
establish an effective date and duration of the MOU
or conditions for termination.
(8) Authorized filer contact information. The MOU shall
require authorized filers to provide full information of persons to contact,
including an administrative contact person and an information technology
contact person.
(9) Liabilities and responsibilities of the
authorized filer. The MOU shall require authorized filers to be responsible for
keeping their encryption keys secure pursuant to Subsection D of 1.11.2.11 NMAC and for establishing internal controls to assure the
security of the private key is not compromised and shall charge them with the
responsibility to notify the clerk's office of a compromise to address any
breach of internal controls.
(10) Breach of agreement by authorized
filer. If an authorized filer fails to
take immediate corrective and remedial action for any security compromise, the
clerk may revoke the authorized filer's privileges to file electronically.
B. A participating
county clerk may include in the MOU other procedures
and requirements consistent with 1.11.2 NMAC in order
to implement fully an electronic filing and recording program.
[1.11.2.10 NMAC - N, 9/15/2008]
1.11.2.11 DOCUMENT AND
SYSTEM SECURITY REQUIREMENTS: Security procedures
shall be implemented to ensure the authenticity and integrity of the
electronically filed instrument, including the ability to verify the identity
of the filer, as well as the ability to verify that an instrument has not been
altered since it was transmitted or filed.
In order to protect the integrity of instruments to be recorded
electronically, a participating county clerk and authorized filers shall meet
the security procedure requirements set forth below.
A. An
electronic recording delivery system implemented by a county clerk shall
provide a secure method for accepting and recording digital or digitized
electronic instruments. The system shall
not permit an authorized filer or its employees and agents, or any third party,
to modify, manipulate, insert or delete information in the public record
maintained by the county clerk, or information in electronic records submitted
pursuant to 1.11.2.NMAC.
B. Security
standards implemented by county clerks shall accommodate electronic signatures
and notarization of documents in a manner that complies with 12.9.2 NMAC, Performing
Electronic Notarial Acts and that address the
following encryption requirements. The
electronic recording delivery system shall:
(1) support,
at a minimum, 128-bit file and image encryption over a secure network;
(2) provide for periodic
updates to encryption by the electronic recording delivery system vendor;
(3) advise
the authorized filer of its liabilities and responsibilities for keeping its
keys secure;
(4) provide a secure
key management system for the administration and distribution of cryptographic
keys; and
(5) require all
encryption keys to be generated through an approved encryption package and
securely stored.
C. The
electronic recording delivery system shall control interactive access to the
system through authentication processes that:
(1) utilize
a process of requesting, granting, administering and terminating accounts;
(2) address
the purpose, scope, responsibilities and requirements for managing accounts;
(3) designate
one or more individuals to manage accounts; and
(4) provide
for secure delivery of the authorized filer (s) initial password(s) and
prohibit the transmission of identification and authentication information
(password) without the use of industry-accepted encryption standards.
D. County
clerks shall have a key management system in place for the secure
administration and distribution of cryptographic keys.
(1) The electronic recording delivery system
shall authenticate the authorized filer's private key.
(2) Authorized filers shall establish internal
controls to assure the security of the private key is not compromised and
certify compliance with the county clerk as part of the MOU.
(3) Security of private keys compromised
within the electronic recording delivery system shall be promptly addressed by
the clerk.
E. A risk analysis to identify potential threats to the
electronic recording delivery system and the environment in which it operates
shall be conducted at least once every three years by the county clerk and
shall be submitted to the department of information technology and the
commission of public records. The purpose
of the risk analysis is to prevent the filing and recording of fraudulent
instruments or alteration of instruments that were previously filed and
recorded electronically. A risk analysis
shall identify and evaluate system and environmental vulnerabilities and
determine the loss impact if one or more vulnerabilities are exploited by a
potential threat. The risk analysis
shall include:
(1) a
risk mitigation plan that defines the process for evaluating the system;
(2)
documentation of management decisions regarding
actions to be taken to mitigate vulnerabilities;
(3) identification
and documentation of implementation of security controls as approved by
management; and
(4)
a reassessment of the electronic recording
delivery system security after recommended controls have been implemented or in
response to newly discovered threats and vulnerabilities.
F. Authorized filers
who are enrolled in a participating county clerk's electronic filing and
recording program shall implement security procedures for all electronic filing
transmissions and shall be responsible for maintaining the security of the
systems within their respective offices.
G. Electronic
recording delivery systems shall protect against system and security failures
and, in addition, shall provide normal backup and disaster recovery mechanisms.
[1.11.2.11 NMAC - N, 9/15/2008]
1.11.2.12 ELECTRONIC TRANSMISSIONS:
A. Instruments shall be transmitted through either a secured website
or an electronic recording delivery system.
The method of transmission shall be identified in the MOU (1.11.2.10 NMAC) signed by
the authorized filer and the county clerk.
B. An
authorized filer shall visually inspect each instrument prior to transmitting
to ensure compliance with existing statutory recording requirements and 1.11.2 NMAC;
C. Instruments
submitted for filing shall have a transmittal sheet containing the following information
and order:
(1) document
type - title of the document type shall be stated at the top of the page below
the top margin;
(2) return
to - all cover transmittal sheets shall have a return to name, address, phone
and fax numbers and email address;
(3) party names - all party
names to be indexed shall be listed with
the grantor's last name, then first, and middle names, followed by the
grantee's last name, first and middle names and full name of business entities
bolded, underlined or capitalized in a way to stand out for indexing;
(4) subsequent
references - references to the original document on subsequent documents shall
appear conspicuously on the first page of all subsequent documents;
(5) legal
description - if legal description is provided the page number on which the
legal description is printed shall be referenced;
(6) recording fee -
the amount of the recording fee; and
(7) property tax -
the name and address on deed of party responsible to pay property tax shall
appear on the first page of the document.
[1.11.2.12 NMAC - N, 9/15/2008]
1.11.2.13 ELECTRONIC RECORDING PROCESS REQUIREMENTS:
A. An MOU between a participating county clerk and an authorized
filer shall include information required by the participating county clerk in
order to provide electronic notice of confirmation or rejection of an
electronic filing and subsequent recording, or if such electronic notice is not
possible, by telephone or facsimile. The MOU shall
address the requirements outlined in 1.11.2.10 NMAC.
B. When a
participating county clerk provides acknowledgment of receipt of an instrument
filed electronically, the instrument shall be considered to have been filed in
compliance with the applicable regulations and laws relating to filing of an
instrument with the county clerk.
C. A notice of
confirmation of recording or a notice of rejection for recording shall be
provided by a participating county clerk to an authorized filer no later than
the first business day after the instrument is filed electronically.
(1) A notice of confirmation shall include
recording information for the instrument accepted for recording and shall
identify the instrument accepted for recording, as provided in the agreement.
(2) A notice of rejection shall include a brief
explanation of the reason or reasons for rejection and shall identify the
instrument rejected for recording, as provided in the agreement.
(3) If a participating county clerk complies
with the notice provisions of the agreement, the failure of an authorized filer
to receive notice of confirmation or rejection of filing and subsequent
recording shall not affect the validity of the confirmation or rejection.
D. The authorized
filer shall be responsible for returning the original instrument to the party
or parties entitled to it after notice of confirmation of recording is received
by the authorized filer and for providing to such party or parties the
recording information set forth in the notice of confirmation from the
participating county clerk.
[1.11.2.13 NMAC - N, 9/15/2008]
1.11.2.14 ELECTRONIC
SIGNATURES AND NOTARY ACKNOWLEDGEMENT:
A county
clerk that accepts for recording electronically signed and notarized
instruments utilizing digital signatures based on PKI
encryption technology shall do so in accordance with rules promulgated by the
secretary of state. For purposes of
efficiency, participating county clerks are encouraged to utilize technology
and to accept digital certificates from certification authorities compatible with
the technology used and certificates accepted by other participating county
clerks.
[1.11.2.14 NMAC - N, 9/15/2008]
1.11.2.15 DOCUMENT FORMATS:
A. Authorized filers may elect to transmit either a digitized (scanned)
electronic document of an original ink signed instrument or an electronic
document electronically signed and notarized along with electronic indexing
information to the county clerk.
B. Digitized (scanned) electronic
documents shall meet the following specifications:
(1) provide fidelity
to the original appearance of any instrument at the time such instrument was
first created, whether by electronic or other means;
(2) retain the original
content;
(3) be scanned at a minimum
of 300 dpi;
(4) be scanned in
TIFF or PDF/A formats;
(5) be scanned in
portrait mode;
(6) shall capture document
images in any multi-page storage format as specified by the county clerk; and
(7) shall be legible
to enable reproduction onto microfilm or microfiche to meet 1.14.2 NMAC requirements.
C. Digital electronic documents transmitted
to the county clerk for recording shall meet PRIA
formatting and document data field standards.
The commission of public records and the department of information
technology have adopted by reference PRIA and MISMO electronic document formatting and data field
standards.
D. Electronic recordings shall be converted to (if necessary) and
preserved as TIFF or PDF files along with their associated metadata. Method 3 submissions shall be converted to
TIFF or PDF to meet preservation requirements pursuant to 1.14.2 NMAC.
[1.11.2.15
NMAC - N, 9/15/2008]
1.11.2.16 DOCUMENT AND INDEXING REQUIREMENTS:
Electronic recording delivery systems implemented by county clerks shall
have the capacity at a minimum to process documents that are compatible with
indexing requirements established by PRIA for file
formatting and indexing.
A. The PRIA eRecording XML Standard v2.4.1 is adopted by
reference. The most current version of
the PRIA indexing and document format standards may
be found at the PRIA website at http://pria.us/.
B. Indexing fields for each document code shall require the minimum index fields listed
below:
(1) grantor(s) or
equivalent grantee(s) or equivalent.
(2) document type
recording fee related (original document number, in the case of releases,
assignment, amendments, etc.).
(3) legal description
fields as specified by county.
(4) standard PRIA tags defined for these fields must be used.
http://pria.us/
[1.11.2.16 NMAC - N, 9/15/2008]
1.11.2.17 PAYMENT OF FILING FEES:
Payment of recording fees shall be collected by a county clerk as
prescribed by statute. The clerk shall
provide an electronic or other written receipt to the authorized filer indicating
that the payment for the recordation of the electronic instrument has been
received and processed by the clerk. The
electronic recording delivery system may generate an automated electronic
report which complies with this requirement.
The clerk shall provide authorized filers with a list of payment methods
which may be used for the recordation of electronic real property records.
[1.11.2.17 NMAC - N, 9/15/2008]
1.11.2.18 PRESERVATION: Real property records in the custody of the
county clerk are permanent records and must be preserved. The preservation of electronic real property
records requires consistent and complex management in order to maintain
authenticity and integrity. Electronic records are subject to the same threats
of destruction as other mediums such as natural or human-made disasters. There
are the added challenges of hardware and software obsolescence, media longevity
and migration, infrastructure failures and accidental damage from improper
handling. The durability of electronic
records has not been proven to be as enduring as microfilm. In order to secure
and preserve information created and stored electronically, permanent digital
real property records shall be converted to microfilm. Microfilm shall meet standards established by
the commission of public records 1.14.2.10 NMAC.
[1.11.2.18 NMAC - N, 9/15/2008]
HISTORY OF 1.11.2 NMAC: [RESERVED]