With some banks and municipal offices closed to walk-ins, non-essential employees working from home, and social distancing requirements in place, the ordinarily mundane task of having documents notarized has become much more challenging. The very act of taking an acknowledgment requires that the notary personally interact with the signatory, verify identity, and witness document execution. This, of course, is wholly inconsistent with the COVID-19 world in which we find ourselves. Although electronic (rather than pen and ink) notarization has become more common in many jurisdictions, few states permit online or webcam notarization where the person signing a document is not in the physical presence of the notary. As a result of COVID-19, the rules have been relaxed in New Jersey and New York in order to permit video notarization in some instances.
New Jersey is utilizing a legislative process to amend the Notaries Public Act of 1979 (the “Act”). A bill designated as A-3903 was signed into law on April 14, 2020, as P.L. 2020, ch. 26. It takes effect immediately and will remain in effect for the duration of the COVID-19 emergency as declared by the Governor in Executive Order 103. It provides that a notary appointed pursuant to the provisions of the Act or an officer authorized to take oaths, affirmations, and affidavits, or to take acknowledgments as defined under N.J.S.A. 41:2-1 or N.J.S.A. 46:14-6.1 – which, by existing statute, includes judges, mayors, municipal clerks, county clerks, sheriffs, county freeholders, members of the legislature, attorneys at law, registers of deeds or mortgages, surrogates, and other government officers expressly identified at N.J.S.A. 46:14-6.1(b) – may perform a notarial act using communication technology (which allows communication by sight and sound) for a remotely located individual if:
- the notary or officer:
- has personal knowledge of the identity of the individual appearing before the notary or officer, which is based on dealings with the individual sufficient to provide reasonable certainty that the individual has the identity claimed;
- has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary or officer; or
- has obtained satisfactory evidence, by way of a specified form of identification, of the identity of the remotely located individual by using at least two different types of identity proofing.
- the notary or officer is reasonably able to confirm that a record before the notary or officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature; and
- the notary or officer, or a person acting on his or her behalf, creates an audiovisual recording of the performance of the notarial act.
A “notarial act” is defined to include taking acknowledgments, administering oaths and affirmations, executing jurats or other verifications, taking proofs of deeds, and executing protests for non-payment.
Additional requirements apply for notarization of a remotely located individual who is outside the United States. The law does not permit remote notarizations in certain instances, including adoptions, divorce or family law proceedings, and those under certain articles of the Uniform Commercial Code (including Chapter 2 – Sales and Chapter 2A – Leases). A notarization performed using communication technology requires a statement in the acknowledgment indicating that.
The law establishes recordkeeping requirements of the visual recording for 10 years, unless a different period is established by rule. It also authorizes the State Treasurer to issue rules, or to amend the manual distributed to notaries, concerning notarial acts using communication technology.
Prior to introduction of the Assembly bill that has now become law, substantially similar permanent legislation that is not expressly tied to COVID-19 and would take effect 90 days following enactment was initially introduced on March 16, 2020 as A-3864, passed the Assembly the same day, and passed the Senate on March 19, 2020. No action has yet been taken by the Governor. There are some minor differences between P.L. 2020, ch. 26 and A-3864, but they are substantively similar other than when they take effect.
New York is utilizing executive orders to authorize remote notarization. Executive Order 202.7, which took effect on March 19, 2020 and was extended by Executive Order 202.14 on April 7, 2020, will remain in effect until May 7, 2020 unless further extended. It provides that any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
- The person seeking the notary’s services, if not personally known to the notary, must present valid photo identification to the notary during the video conference, not merely transmit it prior to or after.
- The video conference must allow for direct interaction between the signatory and the notary (e.g., no pre-recorded videos of the person signing).
- The signatory must affirmatively represent that he or she is physically situated in the State of New York.
- The signatory must transmit by fax or electronic means a legible copy of the signed document directly to the notary on the same date it was signed.
- The notary may notarize the transmitted copy of the document and transmit the same back to the signatory.
- The notary may repeat the notarization of the original signed document as of the date of execution provided the notary receives such original signed document together with the electronically notarized copy within 30 days after the date of execution.
The New York State Department of State issued guidance for notaries that confirms that notaries using audio-video technology must continue to follow existing requirements for notarizations that were unaltered by the Executive Order. This includes, but is not limited to, placing on the document the notary’s expiration date and county where the notary is commissioned. If the notary and signatory are in different counties, the notary should indicate on the document the county where each person is located. A notary may not use an electronic signature to officiate the document, but the signatory may use an electronic signature provided the document can be signed electronically under the Electronic Signatures and Records Act. If the signatory uses an electronic signature, the notary must witness the electronic signature being applied to the document, as required under Executive Order 202.7. The Executive Order does not authorize other officials to administer oaths or to take acknowledgments, and applies only to notary publics commissioned by the Secretary of State’s office.
Finally, Executive Order 202.14 expands Executive Order 202.7 to permit use of audio-video technology, in the same manner as described above, for the act of witnessing that is required under the Estates Powers and Trusts Law (EPTL) § 3-2.1(a)(2), EPTL § 3-2.1(a)(4), Public Health Law § 2981(2)(a), Public Health Law § 4201(3), Article 9 of the Real Property Law, General Obligations Law § 5-1514(9)(b), and EPTL § 7-1.17.
We will continue to monitor the progress of A-3864 in New Jersey and any further extensions of Executive Orders 202.7 and 202.14 in New York.