How does RON work?
A RON platform (such as Notarize and DocVerify) provides services to perform RON, including video access, downloading capabilities for the documents that are to be signed, and an approved authentication process. Each state that allows RON has approved RON platforms within that state. The signer and notary join online for a two-way audio/video session, and the signer begins the identity-proving authentication process, which includes verifying government-issued identification and answering a few identifying questions. After the authentication process is complete, the signer signs the documents and then the notary notarizes the documents electronically (this takes place while each party can see and hear the other). The electronic versions of executed documents are returned to the signer as the originals, and the notary is required to create and keep (generally for five to 10 years) an audiovisual recording of each remote notarization.
Which states allow RON?
Eighteen states have fully implemented RON. Five states have passed a law authorizing RON but the law is not yet in effect. Seven states have introduced a bill. Due to COVID-19, some states that have not implemented RON will nevertheless temporarily permit RON, including New Hampshire (effective March 23, 2020 until the end of the state of emergency), New York (effective March 19, 2020 until April 18, 2020), and Wyoming (effective March 25, 2020 until July 1, 2020). Wisconsin signed a law that would make RON available in the fall of 2020, but due to the current pandemic, accelerated the effective date to March 17, 2020. Also due to COVID-19, the New Jersey State Senate and Assembly recently passed a bill, which is awaiting the governor’s signature, that would allow for RON (with certain restrictions), and Pennsylvania introduced a new bill in the State Senate on March 23, 2020 that would permit RON.
The states that currently allow RON are: Florida, Idaho, Indiana, Kentucky, Michigan, Minnesota, Montana, Nevada, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin, as well as New Hampshire, New York, and Wyoming on a short-term basis.
Temporary RON orders have been issued in the following states: Alabama, Arkansas, Colorado, Connecticut, Georgia, Hawaii, Illinois, Iowa, Louisiana, Maryland, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, Pennsylvania, Rhode Island and West Virginia.
Washington signed a law that would make RON available in the fall of 2020, but due to the current pandemic accelerated the effective date to March 27, 2020 until the expiration of the emergency proclamation. The California Secretary of State updated its website indicating that California citizens who wish to have their documents notarized remotely can seek a mobile California notary public or use an out of state remote online notary public. The Delaware Department of State directed that its residents may use a remote notary from a state who permits remote notarization.
Please note, as with all RON, including temporary RON orders, it is important to review each state law for specific restrictions and requirements regarding RON.
On March 18, 2020, Senators Kramer and Warner introduced federal legislation that would allow for immediate nationwide use of RON called the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (The SECURE Notarization Act).
Limitations on RON
The notary has to be present in the state in which they are commissioned when performing RON. States that do not currently allow RON may or may not accept the notarization, depending on state laws and regulations. For example, Iowa used to have a law (now superseded) that any documents intended for use in Iowa could not be remotely notarized. Absent this sort of restriction, a document signed in a state with no RON law should be enforceable when notarized in a state with RON laws. California recently provided guidance confirming that documents using RON are enforceable in California, even though California has no RON law at present.
Electronic transactions
The Uniform Electronic Transactions Act (UETA) establishes the legal equivalence of electronic signatures, electronic records, and contracts based or memorialized in electronic formats with paper writings and wet-ink signatures, thereby removing barriers to electronic commerce. UETA has been adopted in 48 states, the District of Columbia, and the U.S. Virgin Islands. It has not yet been adopted in Illinois or New York, and Washington has just enacted UETA in 2020. Some states have made modifications to UETA. UETA applies to transactions in the conduct of business, commercial, or government affairs, which generally means that it does not apply to a notice or other similar one-party actions (such as wills or trust documents).
UETA necessarily involves two willing parties, and those parties must agree or intend to conduct transactions electronically before invoking the Act. UETA defers to substantive laws to outline the method or manner of transmitting information, the meaning or effect of the agreement, to whom a record or signature is attributed, etc.
UETA includes provisions on notarization that permit a notary public and other authorized officers to act electronically, effectively removing the stamp/seal requirements. It does not eliminate other notarial requirements but simply allows the signing to be accomplished in an electronic medium. A notary must be present to witness the agreement and provide the appropriate verification, but those notarial requirements that required a paper medium or a stamp/seal and would thereby prohibit an electronic signature are no longer necessary under UETA.
Client Alert 2020-177
