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.
Duane Morris has prepared a table summarizing the remote notarization laws of each state.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage. For more information on handling documents not requiring notarization, please see our March 20, 2020, Alert.
For More Information
If you have any questions about this Alert, please contact Roger S. Chari, David R. Augustin, Brad A. Molotsky, Meagen E. Leary, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are in regular contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.