Recording copies instead of originals

A longstanding rule at the registry of deeds is that only original documents (or a copy certified by another registry) may be recorded. This rule is codified by Massachusetts Deed Indexing Standard 8-4 and is strictly enforced at registries throughout the Commonwealth. However, at a time when the majority of documents are recorded electronically and when some documents never even exist in paper form, it may be time to reconsider this rule. 

The proper starting point for reconsidering a longtime standard is to ask what purpose is served by the rule When a person presents a document for recording, that person having custody of the original provides some authentication of the document. If the item presented is clearly a copy, it invites the question of what happened to the original. While there would undoubtedly be some innocent reasons for the original not being present, there could be some not-so-innocent reasons too. While it is also true that an original is better evidence in adjudicating a claim of forgery, the registry keeps only a copy and returns the original and so would not have possession of it when a claim of forgery arose. 

However, the authentication function of the original was far greater when documents were created with typewriters and ink pens. Both left discernable impressions in the surface of both sides of the page which made a document’s identify as the original version easier to determine. But in the age of laser printers and sophisticated copiers, decided whether a document is an original or a copy is more difficult to do.

The excellent output of today’s copiers has undercut another reason to require the original document for recording. In the age of carbon copies or even in the infancy of copier technology, copies tended to be poor and difficult to read. Having possession of the original document permitted the registry to create the best copy for the official records. Today, the distinction in legibility between the original and the copy has largely disappeared which takes away another reason for refusing to record a copy.

Finally, there is an argument to be made that the Uniform Electronic Transaction Act authorizes a copy of a document to be recorded. That law states that the electronic version of a document fulfills any law that requires a document to be in writing. Put another way, an electronic document is just as good as an original paper document. If you think of a photocopy as the electronic version of an original document that is then printed on paper, there is little reason to refuse to record such a document.

As technology and business practices continue to evolve and all-electronic documents become commonplace, our entire concept of “original” will need to change. In an electronic world where one copy of an electronic document is indistinguishable from another, there is no original document. The issue really is the intent of the person “signing” the document. Whether it is a traditional “wet” signature or some mark or symbol made on an electronic tablet, the relevant question is did the person intend that mark to constitute his signature. The answer to that question will depend on all the circumstances surrounding the execution of the document, not whether the document contains an original cursive signature made in ink on paper.