Mike is an attorney in Obermayer’s Business & Finance Department. He has a transactional practice focusing on banking (public and private financing) and real estate matters, as well as corporate formation and...Read More by Author
Notarization in a COVID-19 World
Dating back to the ancient Romans, notaries were used to authenticate all types of documents, including, without limitation, deeds, contracts, mortgages, testaments and judicial proceedings.
In fact, in William Shakespeare’s “The Merchant of Venice” the merchant insisted that the young man who could not pay his debt “[g]o with [him] to a notary, [and] seal me there your single bond” to authenticate the usual contract he made for repayment of his debt (Act I, Scene iii).
Notaries perform a vital function in our society filled with legal documents and contracts. Each document that has been notarized has been affirmed and verified by the notary that the signatory of the document presented themselves in front of the notary. It is the notary’s job to identify and verify that the person signing the document is in fact who they say they are. This is the greatest responsibility of a notary.
Although notary requirements vary state by state, generally, every notarial act requires a notary to: (i) demand personal appearance; (ii) identify the customer; (iii) apply their seal and signature; and (iv) fill in their register.
Unfortunately, with the growing pandemic of the Coronavirus (“COVID-19”), notaries in many places are unable to demand personal appearance of those who need to utilize their services. Without personal appearance, notaries are unable to properly authenticate documents, and under current law are prohibited from notarizing any documents. However, with the uncertainty of how long state’s “Stay Home Orders” and business restrictions are in place, states are looking for alternate methods to allow individuals to execute important legal documents from the comfort, and safety, of their own home.
In Pennsylvania, State Senators Doug Mastriano and Lisa Culver have introduced Senate Bill 1092 to allow the remote notarization of documents. Senate Bill 1097 would provide notaries with additional tools to perform notarizations for remotely located individuals. Under this bill, a notary would be allowed to authenticate documents and confirm the identity of a remote individual through reliable and secure communication technology. Senate Bill 1097 passed the Senate unanimously in the Senate last session, but is currently in the Senate State Government Committee where it awaits further consideration.
While the Pennsylvania Senate considers Senate Bill 1097, the Pennsylvania General Assembly is prepared to consider an amendment to House Bill 1564 over the next two days that would amend the Revised Uniform Law on Notarial Acts to allow notaries to perform notarizations without the customer personally appearing in front of them. Under this amendment to House Bill 1564, a notary would be able to perform notarization for remote individuals so long as: (i) the notary knows the customer personally; or (ii) the notary has satisfactory knowledge of the customer’s identity through affirmation by a credible witness. In the event the notary relies on satisfactory knowledge, it must obtain at least two different types of identification to verify the customer’s identity. Also, regardless of the method used to verify the identity, the notary would be required to record audio and video of the notarization and retain that recording for a period of ten (10) years. This amendment will also allow notaries to certify that a tangible copy of an electronic record is a true and correct copy of the electronic record. The Pennsylvania General Assembly is expected to vote on this amendment and House Bill 1564 today or tomorrow. Once passed, it will move to the Pennsylvania Senate for further consideration.
Additionally, in New Jersey, the New Jersey General Assembly passed bill A-3864 that would allow New Jersey notaries to perform notarization for remote individuals. The requirements for remote notarization under A-3864 are similar to that of the amendment to House Bill 1564, and require: (i) the notary knows the customer personally; or (ii) the notary has satisfactory knowledge of the customer’s identity through affirmation by a credible witness. In the event the notary relies on satisfactory knowledge, it must obtain at least two different types of identification to verify the customer’s identity. Also, regardless of the method used to verify the identity, the notary would be required to record audio and video of the notarization and retain that recording for a period of ten (10) years. A-3864 has been delivered to the Governor’s office for Governor Murphy’s signature.
At the federal level, Senators Kevin Cramer and Mark Warner introduced S. 3533, the “Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act of 2020” which, if enacted, would immediately allow notaries to perform remote online notarizations where the notary and customer are in different locations. Since this is a piece of federal legislation it would apply nationwide. Please note this bill was just introduced so the text and detail of the proposal has not been published yet. S. 3533 has been referred to the Senate Judiciary Committee where it awaits further consideration.
There are fifteen (15) states that currently allow remote notarization, with many more considering the practice now. Not only does remote notarization allow business to continue during this pandemic, but it also allows people to have important documents notarized from the comfort and safety of their own home. Setting aside the COVID-19 pandemic, remote notarization is an important step towards improving access to services and making business more efficient. However, it is important to note, that even if these measures are enacted, each individual notary will have the option whether or not to follow such measures. As is the case with any notarization, if the notary does not have a level of comfort, they do not need to perform the notarization as they are the one who will ultimately have to stand before a judge if there is any issue with the notarization.
Our office continues to operate during these unusual times and we are happy to serve as a resource if you are interested in learning more about these potential bills or what you can do to help get them enacted. Please do not hesitate to reach out to us with any questions you may have on current notary laws or proposed changes. We will continue to provide updates on the changes to the notary laws as they happen as we know the effect this has on the real estate and legal world.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.