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Secretary of State Opinion: Should DNRC Leases be Recorded if Not Notarized?


Posted Date: 
April 12, 2012
Contact: 
Rusty Harper, Deputy, ARM/Notary Services, Montana Secretary of State's Office

To record DNRC leases or not?

We have been receiving inquiries from some clerk and recorders' offices about whether to record Department of Natural Resources and Conservation (DNRC) leases that have not been notarized.

In a letter dated August 27, 2010, staff for DNRC stated that the use of the Department’s official seal constitutes sufficient authority under 1-4-201 and 1-4-202, MCA, in lieu of an acknowledgment by a notary public. 

The question is this:  Can these leases be recorded without being notarized as an acknowledgement?

Yes!

Our chief legal counsel, Jorge Quintana, analyzed the relevant laws. It is his opinion that when 7-4-2613(1)(a), MCA, (about documents subject to recording), references "leases that have been acknowledged or proved," that this means the leases can either be acknowledged OR proved. An acknowledgement is a notarial act.  A proof is something different.

Proof of the execution of an instrument which has not been acknowledged may be made by all of the parties who executed it, or any one of them, according to 1-5-301, MCA. The DNRC official affixes his signature and uses an official public seal. In 1-4-201, MCA, (Seal defined), subsection (2) states, "A public seal in this state is a stamp or impression made by a public officer with an instrument provided by law to attest the execution of an official or public document." The lessee also signs the lease. 

In addition to the signatures and the seal, one more component is needed for the document to be recordable under 7-4-2613(1)(a), MCA.       1-5-305, MCA, also requires that a “certificate” must be attached to the instrument.  In fact, the leases contain this "certificate" language:

IN WITNESS WHEREOF, the State of Montana and the lessee have caused this lease to be executed in duplicate and the Director of the Montana Department of Natural Resources and Conservation, pursuant to the authority granted him by the Board of Land Commissioners of the State of Montana, has hereunto set his hand and affixed the Seal of the Board of Land Commissioners this ____ day of _________   ______.

After a thorough analysis, Chief Legal Counsel Quintana drew this conclusion: "Since either 'acknowledgment' or 'proof' is the requirement to make a document recordable under Mont. Code Ann. § 7-4-2613, the method used by the DNRC to attest to the execution of the leases through the use of a public seal, the signature of the department official and the lessee, and the certificate language  is an acceptable method under the law and the leases should be accepted for recording by the clerks and recorders."

If your county attorney or you have questions about this opinion, please contact our office. I can be reached at (406) 444-5596 or rustyharper@mt.gov.

Rusty Harper | rustyharper@mt.gov | 406-444-5596