Social Distancing and Notarization During the COVID-19 Pandemic – Lexology
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This is a rapidly changing environment with new developments happening on a daily basis.
With most of the country under stay-at-home orders and practicing social distancing, COVID-19 has become a major disruptive force for the indefinite future. One of the many business areas severely hindered by COVID-19 is contractual relationships between parties. Consenting parties to a new contract may agree that a PDF signature page sent by email suffices in these times, but what about statutory requirements that have to be satisfied? Real estate deeds and mortgages generally need to be notarized to be accepted for recording and for title companies to insure them. A will or trust agreement drawn up during the pandemic may need to be notarized as well to be given effect. Usual notary requirements include in-person, physical presence before the notary. How does that work with social distancing?
The answer is remote notarization. There are different varieties, each with their advantages and disadvantages. Prior to the pandemic, the two main alternatives to traditional notarization were e-notarization (e-Notary) and remote online notarization (RON). In typical e-Notary, all of the signatures and notarizations are done electronically rather than with wet ink signatures. However, the traditional physical presence requirement remains—everyone simply gathers around the computer. That doesn’t work in a pandemic.
In typical RON, the notary and signer can be in different places connected by a real time audio-video link. However, in many cases, state laws or regulations contemplate or require that notaries need to receive special training and licensing to conduct RON and recommend or mandate that only approved remote notary software platforms be used. This can limit the choices during a pandemic, if applicable state law even allows it at all.
A third, less used option is audio-video or A/V notarization. Unlike typical RON, A/V notarization does not need to be fully digital and does not need to be done on a specific platform. This allows more flexibility to use FaceTime, Zoom or other commonly used apps and services. But A/V notarization may be viewed as being less reliable and secure. During a pandemic, however, it may be the practical choice.
Amidst all of the emergency actions taken during the pandemic, some states have recognized the need for notarization to continue and have issued executive orders or enacted or considered emergency laws. However, every state is different and has taken different measures (or none). Some states without a RON statute (and some with a RON statute) have implemented A/V notarization on an emergency basis. Others with a RON statute set to become effective later have accelerated the implementation of RON. Other states with a RON statute (and some without) haven’t made any changes (yet).
There is also great variation in the substantive provisions. Most of the emergency actions are effective throughout the emergency, but some have specific expiration dates that are (hopefully) subject to extension. Some of the actions only apply to notaries who are licensed attorneys or operating under the supervision of a licensed attorney. Sometimes, both the notary and the signer must be physically present in the same state; sometimes only the notary must be present in the state where RON or A/V notarization is authorized. Some states require that a recording of the process be made and kept, and others don’t. At least one state expressly carves out certain wills and family law documents from the effect of the proposed law. In many cases, the same rules that permit remote notarization also permit remote witnessing. Some states realize that driver’s licenses and other forms of ID may expire during the pandemic and extend their effectiveness; most others do not.
The chart below surveys the current state of notarization based on public information as of April 3, 2020. This is a rapidly changing environment with new developments happening on a daily basis. In some cases, there is a lag between an order or law being issued and public information being available. The chart describes some of the key provisions, but the orders and statutes often contain much more detail and additional caveats. It is advised to consult experienced local counsel before taking any proposed action. As part of your transaction, if you are going to be recording a deed or mortgage, the title insurer should also be involved in the notarization process, and you will need to confirm whether the applicable recording office will accept RON or A/V notarization.
REMOTE A/V NOTARIZATION PERMITTED?
BRIEF DESCRIPTION OF REMOTE A/V NOTARIZATION BILL/LAW/ORDER
By Proclamation of the Governor dated March 26, 2020, only Alabama notaries who are licensed attorneys, or operating under the supervision of a licensed attorney, may notarize signatures through videoconferencing programs. By the same Proclamation, any individual who witnesses a document through videoconference technology is considered an “in person” witness. Applies during the remainder of the emergency.
Alabama Proclamation March 26, 2020
Legislation related to remote notarizations has been passed by the Alaska House and Senate, but is awaiting execution by the Governor.
Alaska Electronic Documents and Notarization
Alaska House Bill No. 124
Arizona only has a remote online notarization law (SB 1030) that becomes effective June 30, 2020.
Arizona SB 1030
By Executive Order EO 20-12 dated March 30, 2020, only notaries who are (1) attorneys licensed to practice law in Arkansas, (2) licensed Arkansas title agents, (3) supervised by such an attorney or title agent, or (4) employed by a financial institution registered with the Arkansas State Bank Department may notarize documents by remote “real-time audio and visual means” using “facsimile signatures.” Both the notary and the signer must be physically located in Arkansas. Witnesses present by such means shall be considered “in person” witnesses. Unless counterparts are expressly forbidden in a document, separate counterparts by parties in different locations are deemed permitted. Applies during the remainder of the emergency.
Arkansas Executive Order 20-12
On April 2, 2020, a group of industry organizations including the California Association of Realtors, the California Bankers Association and SIFMA sent a letter to the Governor requesting that he consider issuing an executive order expressly providing or affirming that California law recognizes the validity of documents that are legally remotely notarized in accordance with the laws of the jurisdiction of the notary. It does not appear that such an order was issued. However, the California Secretary of State has a Notary Public page with answers to COVID-19 Questions. The answer to the second question on the pulldown menu indicates that although California notaries may not perform remote online notarization, under California Civil Code 1189(b), California does recognize out of state remote online notarizations that are performed in accordance with local state law.
California Secretary of State FAQs
Letter to Governor Newsom
By Executive Order D 2020 019 dated March 27, 2020, Governor Polis temporarily authorized the use of real-time audio-video communication to carry out notarizations, subject to consent rights of parties in contracts that require or contemplate in-person notarization. On March 30, 2020, the Colorado Secretary of State issued detailed implementation rules. Among them, the notary and signer must be physically located in Colorado and the process must be recorded and stored for 10 years. Wills are subject to special requirements, and remote notarization is not permitted for documents related to the electoral process.
NOTE: Order expires 30 days after March 27, 2020, unless extended.
Colorado Executive Order D 2020 019
Colorado Secretary of State Notary Program Rules
By Executive Order No. 7K dated March 23, 2020, Connecticut authorized notarizations “using an electronic device or process” that allow the notary and a remotely located individual to “communicate with each other by sight and sound.” Detailed conditions address identification requirements and include that the signer must be physically located in Connecticut, and the process must be recorded and retained for at least 10 years. Additional requirements apply with respect to wills. Note: Only effective through June 23, 2020, unless otherwise modified by the Governor.
Connecticut Executive Order No. 7K
Delaware permits e-notarization (the performance of a notarial act on an electronic document using an electronic signature and seal), but not remote notarizations.
Delaware E-Notarization Policy
Effective January 1, 2020, Florida authorized remote notarizations (Chapter 2019-71 of the Florida Statutes), subject to Florida’s training requirements. By Administrative Order No. AOSC20-16 of its Supreme Court dated March 18, 2020, Florida expanded remote notarizations to allow notaries to administer oaths and swear witnesses for court proceedings using remote audio-visual technology. Need to confirm if only specific vendors and electronic signatures will be accepted.
Florida Statutes Chapter 2019-71
Florida Supreme Court Order AOSC20-16
By Executive Order 3.31.20.01 dated March 31, 2020, the in-person or physical presence requirement for signers and witnesses may be satisfied by the use of real-time audio-visual communication technology. Furthermore, by order of the Georgia Supreme Court dated March 27, 2020, an attorney may participate in, and supervise the closing of, a real estate transaction by way of video conference. Applies during the remainder of the emergency.
Georgia driver’s licenses and ID cards that expire between March 23, 2020, and June 30, 2020, will be deemed extended for 120 days.
Georgia Executive Order 3.31.20.01
Georgia DDS Press Release
By Executive Order 20-02 dated March 29, 2020, Governor Ige suspended Chapter 456 of the Hawaii Revised Statutes and related administrative rules to the extent they require physical contact for notary functions. Among the list attached to the Order, the audio-visual notarization must be live, not prerecorded, and the signer must be physically present in the state of Hawaii. The notarization statement must recite that it was performed pursuant to the Order. The notary must record the interaction and store it on a storage device such as a flash drive, DVD or hard drive. Applies during the remainder of the emergency.
Hawaii Executive Order 20-02
Effective January 1, 2020, Senate Bill 1111 went into effect, and remote notarizations are permitted in Idaho under Session Law Chapter 160. The notary must be located in Idaho, but the signer can be located outside the state or in another country. The notary certificate must state that it involved the use of communication technology, and a recording must be maintained for 10 years.
Idaho Senate Bill 1111
By Executive Order 2020-14 dated March 26, 2020, Governor Pritzker authorized remote notarization via two-way audio-video communication technology, provided that the notary is physically within the state and the detailed guidance posted by the Illinois Secretary of State is followed. Unless counterparts are expressly forbidden in a document, separate counterparts by parties in different locations are deemed permitted.
The Order also contains detailed requirements by which remote witnessing may occur. Very similar to the notary guidance, the witness must be physically located in the state, and the signer must keep a recording for at least three years.
Applies during the remainder of the emergency.
Illinois COVID-19 Executive Order No. 12
Illinois Guidance for Remote Notaries and Consumers
Indiana’s remote notarization law is set forth in Section 33-42-17-1, et seq., of the Indiana Code. The law contains detailed effectiveness and implementation requirements.
Indiana Code Section 33-42-17-1, et seq.
Through Emergency Proclamation on March 22, 2020, Iowa temporarily authorized remote notarizations, subject to the requirements of Iowa Administrative Code 721-43, Iowa Code chapter 9B and the provisions of Section 6 of 2019 Iowa Acts chapter 44 (Senate File 475). Iowa’s remote notarization law was set to go into effect July 1, 2020. Note that Section 6 requires use of an approved software service rather than audio-video conferencing services. Administrative rules do not appear to be in effect yet, but draft rules are posted on the Secretary of State website.
Note: Proclamation expires on April 16, 2020 unless extended.
Iowa Emergency Proclamation
Iowa Secretary of State Media Release
Remote notarization legislation has been passed by the Kansas House (HB 2713), but is awaiting action in the Kansas Senate.
Kansas House Bill 2713
Effective January 1, 2020, Kentucky’s remote notarization law (Title 38, Chapter 423, Sections 423.455, et seq., of the Kentucky Revised Statutes) authorizes remote notarizations.
Kentucky Revised Statutes
By Executive Proclamation 37 JBE 2020 dated March 26, 2020, Section 6 states that during the emergency a notary public may perform remote notarizations as long as the signatory or witness can simultaneously appear before the notary public through audio-visual communication technology. The process must be recorded and retained for at least 10 years. The Proclamation does not apply to specified trust and family law acts. Note: Effective retroactively to March 11, 2020, but only effective until April 13, 2020 unless extended.
Louisiana Executive Proclamation 37 JBE 2020
By Executive Order 20-03-30-04, Maryland authorized the use of remote notarizations. The notary public must notify Maryland’s Secretary of State of their intention to perform notarial acts utilizing communication technology. Notary certificate must indicate that a communication technology was used. Only specified technology platforms appear to be permitted. Applies during the remainder of the emergency.
Maryland notary commissions and driver’s licenses that expire during the emergency period may be used until the 30th day after the emergency is over.
Maryland Executive Order 20-03-30-04
Maryland Secretary of State Notice
Maryland Executive Department Order
Proposed Bill SD.2882 has been filed by Senate Minority Leader Tarr, and Bill HD.4999 has been filed in the House, but no official state actions appear to have been taken yet on either bill. The proposed bills have a number of limitations. Only a notary who is a Massachusetts attorney or paralegal under the direct supervision of a Massachusetts attorney can use electronic video conferencing. Both the notary and signer much be physically located in Massachusetts. Importantly, once the notary watches the signer sign the document, the signer must cause the signed document to be physically delivered to the notary (need not be same day). Then a second audio video conference within Massachusetts must occur to verify the document and apply the notary stamp. The first conference alone is sufficient if the signer dies or becomes incapacitated within 20 days after the first conference occurs. Recordings of both conferences must be done and maintained for 10 years. This also applies to remote witnesses as long as the witness’ signature is also notarized as described above. Bill effective until three business days following the emergency.
Massachusetts Bill SD.2882
Massachusetts Bill HD.4999
Michigan’s remote notarization law (Act 330 of 2018 of the Michigan Compiled Laws) authorized remote online notarization services. Only approved vendor systems can be used.
Michigan House Bill 5811
Michigan Law on Notorial Acts
Minnesota has authorized notaries to perform remote online notarization services. Minnesota’s remote notarization law is set forth in Chapters 358 and 359 of the Minnesota Statutes. Electronic execution is contemplated. Need to confirm if only specific vendors and electronic signatures will be accepted. A recording of the process must be maintain for 10 years.
Minnesota Statutes Chapter 358
Minnesota Statutes Chapter 359
HB 1690 was introduced in the Missouri House, but has not been passed by either chamber of the Missouri Legislature.
Missouri House Bill 1690
Montana’s remote notarization law authorizes notarizations even for signatories outside of Montana or the United States. All remote notarizations shall be recorded electronically. Montana’s remote notarization law is set forth in Chapter 44.15.108.
Montana Rule 44.15.108
Pursuant to Executive Order and Emergency Rule, the delayed July 1, 2020 effective date of Nebraska’s Online Notary Public Act has been waived, allowing for early implementation. Certain requirements such as training courses technology verification have been extended. However, online notary solution providers still have to be approved by the Secretary of State. Notary must be located in the state and must keep secure electronic records for at least 10 years.
Nebraska Secretary of State notary page
Nebraska Emergency Rule
Nebraksa Electronic Notary Statutes
Nevada authorizes electronic notarial acts using remote audio-visual communications under the Electronic Notarization Enabling Act, Chapter 240.181-206 of the Nevada Revised Statutes. Nevada has imposed training requirements on prospective online notaries and require a notary to identify the technology that they intend to use, which must allow for recording of the audio/video communication and satisfy another other rule or regulations of the Secretary of State. The notary must be in the state during the process, but the signer may be outside the state, or outside the United States in certain instances.
Nevada Electronic Notarization Act
By Executive Order 2020-04- #11 dated March 23, 2020, New Hampshire has temporarily authorized remote notarizations as long as the notary and the signer can communicate simultaneously by sight and sound through an electronic device or process. The signer may be out of state as long as the document has an in-state purpose. A recording must be kept for the duration of the notary’s commission. Upon signature, the document shall be mailed by the signer to the notary. Applies during the remainder of the emergency.
New Hampshire Executive Order 2020-04-#11
On March 19, 2020, New Jersey’s remote notarization bill (Measure A-3864) passed both the New Jersey State Senate and Assembly. However, the Governor has not signed the Measure and it would not take effect for 90 days.
On March 25, 2020, the New Jersey State Assembly passed Bill A-3903, which would supplant Measure A-3864 and become effective immediately upon the Governor’s signature. The signer may be out of state or in certain instances outside the United States. A signer’s ID that has expired within the prior 3 years may still be used. A recording must be retained for at least 10 years. The notary certificate must state that audio-video recording was used. Exceptions are wills/codicils, most of the UCC, and adoption, divorce or family law matters. Applies during the remainder of the emergency.
New Jersey Measure A-3864
New Jersey State Assembly Bill A-3903
By Executive Order 2020-015 dated March 30, 2020, Governor Grisham permitted remote notarization by video conference among the notary, the signer and any required witnesses. The signer must transmit the signed document to any witnesses and then to the notary on the same day, but the notarization and transmission of the document back to the signer need not be same day. Applies during the remained of the emergency.
New Mexico Executive Order 2020-015
By Executive Order dated March 19, 2020, New York temporarily authorized notarizations through audio-video technology. On March 31, 2020, the New York Department of State issued official guidelines. The signer must be physically located in New York state. Recording is not required, but guidance from the Department of State Recommends that the notary keep a log of each notarization and note on the certification that audio visual conference was used (but failure to do these things will not invalidate the notarization). Note: Expires April 18 unless further extended.
New York Executive Order 202.7
Guidance to Notaries Concerning EO 202.7
North Carolina only has e-Notary and requires a signer’s physical presence before the notary.
North Carolina Secretary of State e-Notary page
North Dakota law authorizes remote online notarizations, even for signatories located outside of North Dakota and the United States, but only through an approved service provider platform. North Dakota’s remote notarization law is set forth in Chapter 44-06.1 of the North Dakota Century Code.
North Dakota Century Code Chapter 44-06.1
Ohio’s remote notarization law authorizes online notarizations via live two-way audio-video communication and remote presentation. Ohio currently has training requirements for prospective online notaries. Ohio’s remote notarization law is set forth in Chapter 147 of the Ohio Revised Code.
Ohio Revised Code Chapter 147
Effective January 1, 2020, Oklahoma authorizes remote online notarizations. Oklahoma’s remote notarization law is set forth in Title 49 of the Oklahoma Statutes.
Oklahoma Statutes Title 49
Oregon only has electronic notarization, requires a signer’s physical presence before the notary and requires use of an approved electronic notarization vendor.
Oregon Electronic Notarization FAQ
On March 25, 2020, the Pennsylvania Department of State announced the temporary suspension of the personal appearance notary requirement for personal real estate transactions that were already in process when the emergency was declared. The same announcement also suspended the in-person notarization requirement for all commercial real estate transactions, including new transactions. However, all other existing requirements must be complied with, including use of an approved electronic notary and approved remote notarization platform.
Pennsylvania Department of State Notice
Effective April 3, 2020, the Rhode Island Department of State announced that remote online notarization will be permitted, subject to new Standards of Conduct. This requires use of an approved electronic notarization platform. Zoom, FaceTime and similar software and apps are explicitly prohibited. Remote notarization of a paper document sent by email or regular mail and affixing an inked notary stamp is also permitted. Applies during the remainder of the emergency.
Rhode Island Secretary of State RON policy
Rhode Island Notary Public Standards
A bill to authorize remote notarizations was introduced in the South Carolina House and Senate in February/March 2019, but appears to be stalled in the Judiciary House Committee.
South Carolina Remote Online Notarization Act
South Dakota limits remote notarizations to original paper documents and physical notary stamps only, and the notary must have “personal knowledge of the identity” of the signer through “dealings sufficient to provide reasonable certainty” of the signer’s identity. Both the notary and the signer need to be located in the state. South Dakota’s remote notarization law is set forth in Chapter 18-1 of the South Dakota Codified Laws, originated in the House as Bill No. 1272.
South Dakota Codified Laws Chapter 18-1
Tennessee authorizes remote online notarization via audio-video communication. Online notaries are required to contract with an online platform vendor. Online Notary Public Act is set forth in TCA 8-16-301 et seq, originated as Senate Bill 1758, and subject to Tennessee Department of State Rules.
Tennessee Secretary of State Online Notary Guide
Tennessee Online Notary Public Act
Texas authorizes online notarization through two-way audio-video conferencing technology. Texas’ remote notarization law is set forth in Chapter 406 of the Texas Statutes.
By news release dated March 19, 2020, the Texas Department of Public Safety extended the expiration of Texas driver’s licenses and ID cards that expire on or after March 13, 2020, to 60 days after the end of the emergency.
Texas Statutes Chapter 406
Texas Online Notary Public Educational Information
Texas Driver's License Updates
To become a remote notary, Utah currently requires each individual to submit an application to the Lieutenant Governor. Remote online notarization must be done through an approved platform vendor. Utah’s remote notarization law is set forth in Title 46, Chapter 1, Section 16 of the Utah Code.
Utah Code Title 46, Chapter 1
Utah Remote Notary Process
By Guidance on Emergency Rules for Notaries Public and Remote Notarization, dated March 24, 2020, the Vermont Secretary of State gave guidance on emergency administrative rules permitting notaries and signatories to satisfy the personal appearance requirement through a secure communication link that is recorded and saved for at least seven years. Among the rules, both the notary and the signer must be physically located in the state. Transmission of the document by the signer must be sent same day and may be by mail, email, fax or photograph, but the notary’s act must be an original or “wet signature.” The Rules provide that they should be used “sparingly” and “do not authorize any form of electronic notarial acts or remote online notarization.” Expiration of the Rules is unclear, but they appear to be intended to last during the remainder of the emergency.
Vermont Secretary of State Guidance
Vermont Emergency Administrative Rules
Virginia notaries are authorized to perform remote online notarizations. Virginia’s remote notarization law is set forth in Section 47.1-2, Section 47.1-14 C, and Section 19.2-3.1, B 1, 2, and 3 of the Virginia Code.
Virginia Code Section 19
Virginia Electronic Notary FAQs
By Proclamation by the Governor dated March 24, 2020, remote notarial acts will be effective immediately. Washington had previously passed Senate Bill 5641, a remote notarization law that was set to take effect October 1, 2020. Note: Per the Proclamation, such emergency effectiveness is set to expire on April 26, 2020.
Washington Governor Amendatory Proclamation
District of Columbia Notary Public Handbook
By Executive Order 11-20 dated March 25, 2020, the Governor of West Virginia suspended the requirement of personal appearance for a notarial act. On March 31, 2020, the West Virginia Secretary of State provided implementation rules. The remote notarization must be done using an electronic device, technology, process or combination thereof with the ability to communicate simultaneously by sight and sound. A recording must be made and held for the duration of the notary’s commission. Subject to certain limitations, the signer need not be physically present in the state. The signer must mail the signed document to the notary, and the notary must sign and stamp or seal the document. Applies during the remainder of the emergency.
West Virginia Executive Order 11-20
West Virginia Electronic Notarization Guidelines
On March 5, 2020, Assembly Bill 293 was enacted authorizing remote online notarization, subject to a May 1, 2020, effective date to allow for implementation rules to be finalized. On March 18, 2020 (updated March 20, 2020), the Wisconsin Department of Financial Institution issued an Emergency Guidance on Remote Notarization interpreting what it means to “appear” before a notary, and for documents to be signed “in the presence” of witnesses in the context of a pandemic. Among the requirements, the notary must be a trained online notary and use a state approved online platform. Such guidance applies “until further notice to be given once this crisis abates.”
Wisconsin Act 125
Wisconsin Emergency Guidance on Remote Notarization
By notice dated March 24, 2020, the Wyoming Secretary of State offered Guidance on Temporary Online Notary Services. The guidance provides that given the circumstances of the emergency, Wyoming law that requires presence of the notary also permits a notary to be present through a remote online notarization with live video and audio connection. The guidance will be reevaluated on July 1, 2020, or when the state of emergency is lifted.
State-by-State Summary of Remote A/V Notarization
Last Updated: April 3, 2020
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