As COVID-19 continues to complicate the logistics of real estate transactions, it is important to understand how some states are moving the notarization process to an electronic platform. Certain states permit notary publics to stamp documents from the safety of their own homes in a process known as Remote Online Notarization (RON).
It is important to distinguish “Electronic Notarization” from “Remote Online Notarization,” as the two are often confused. Electronic Notarization is a process whereby signatories and notary publics execute and stamp electronic documents digitally, but the other requirements of traditional notarization apply. Most notably, a signatory must physically appear before the notary public when the notarial act is performed.
RON, on the other hand, allows the notarization process to occur while the signatory and notary public are physically located in two separate places. The signatory “appears” before the notary public using real-time audio-visual technology, the notary public must be present in the state in which he or she is commissioned, and the signatory may be located in a different state at the time of the notarization.
RON will prove most useful during the COVID-19 outbreak because it permits notarization while remaining “socially distant.” Some states—including Virginia and Florida—already permitted the use of RON prior to the COVID-19 outbreak and have standards and requirements codified in their state laws.
Most states, however, do not have such laws in place. In response to the coronavirus, New York issued emergency Executive Order No 202.7 to permit notarial acts via audio-visual technology if certain conditions are met. The audio-video conference must be in real-time, the notary public must identify the signatory through personal knowledge or a valid photo ID presented during the audio-video conference, and the signatory must electronically transmit a legible copy of the executed document directly to the notary public on the same date it was executed. In contrast to standard RON practice, the executive order requires both the signatory and notary public to be physically located in the state of New York.
Lawmakers in other states—including Massachusetts, New Hampshire, California, and Illinois—have not taken specific action with respect to RON.
[Editor's note: New Hampshire passed emergency legislation on March 23 permitting a form of RON. The specific requirements can be found in Emergency Order #11. Illinois passed emergency legislation on March 26, as amended on April 1, permitting a form of RON. The specific requirements can be found in Executive Order 2020-14 and Executive Order 2020-18. Massachusetts passed emergency legislation on April 23 permitting a form of RON. The specific requirements can be found in St.2020, c.71.].
However, federal lawmakers have proposed a bill known as the SECURE Notarization Act that, if passed, would establish minimum requirements for the immediate use of RON in every U.S. state. The SECURE Notarization Act would permit a notary public commissioned under the laws of a state to perform a remote notarization if the following conditions are met:
- The signatory and notary public communicate via a two-way real-time audio-visual conference;
- The notary public can identify the signatory through personal knowledge, two forms of identification, or through oath or affirmation of a credible witness who meets certain criteria; and
- The notary public creates and retains a recording of the performance of the notarization.
Given the prevalence of notarization in real estate transactions, proponents of the bill include the American Land Title Association (ALTA), the Mortgage Bankers Association (MBA), and the National Association of Realtors (NAR).
We will continue to monitor the Senate bill and state legislation regarding remote online notarization in the coming weeks.
Nixon Peabody has created a multi-office and cross-practice team to help our clients navigate through this fluid situation. Learn more about the Nixon Peabody Coronavirus Response Team.