Thank you for Ed Finkelstein for presenting a "Title Tidbit" at our Executiv4e Committee meeting.

Here are the case citations:

FROM PRIA

Discriminatory Covenants Posted for Second 30-Day Comment Period

Following the initial comment period on PRIA’s Discriminatory Covenants paper and the resulting changes and updates made, the Board of Directors determined the paper should be reposted for further comments prior to publication. 

Of particular note is a new section, “Land Records Primer,” which summarizes the recorder’s role in creating a permanent, unaltered record of land transactions that is maintained in perpetuity.

To read and comment on this paper, click here, review the paper and use the website form to make recommendations on the paper’s contents. Submit your comments on or before May 31, 2022.

The following bills have been signed by the Governor.

S7698 / A8854

Relates to complaints served in a proceeding initiated on a residential mortgage covering a one to four family dwelling. (RPAP L. mortgage foreclosures)

S7797 / A8725

Defines the term property/casualty insurance and provides for the electronic delivery of a policy notice or document by an insurer to a party who consents to such delivery.

(Ins. electronic delivery notices)

WHAT YOU NEED TO KNOW

With the signing of a Chapter Amendment on February 25, 2022, New York State made remote notarization effective immediately.

There are two types of remote notarization:
1. Remote Ink-signed Notarization (RIN) – a signature in ink on a paper document (wet signature)
2. Remote Online Notarization (RON) - a digital document with an electronic signature

All remote notarizations require the use of technology to connect the signor(s) and the notary in real time using a secure means of live audio and visual communication.

WHY THIS MATTERS

The Department of State is required by law to issue regulations for remote notarization no later than January 31, 2023.  In the interim, there may be a lot of confusion and misunderstanding.  Title professionals need to be property informed to ensure the integrity of their documents and compliance with their underwriter guidelines.

IMPORTANT FACTORS

Remote notarization is authorized by Section 135-c of the Executive Law.

A remote notarization is any notarial act wherein a principal is not in the physical presence of the notary at the time of the notarial act.

Both RIN and RON notarizations are legal in New York State until January 31,2023, providing certain conditions are met.  After January 31, 2023, only RON remote notarizations are permitted.

KEY REQUIREMENTS

The notary must be physically present in the state of New York at the time of the notarial act.

The principal (the person whose signature is being notarized) can be anywhere in the United States or out of the country.

If the principal is out of the country, the notarial act must involve a document relating to property located in the United States or connected with the United States.

The notary and the principal must be able to see and hear each other in real time by means of audio-visual technology with security protocols that prevent unauthorized access.

The notary must authenticate the identity of the signor of the document using one of the three following methods:

1. The signor must be personally known to the notary
2. The oath or affirmation of a credible witness who personally knows the signor AND is personally known to the notary
3. The identity of the signor and the credible witness is authenticated by means of credential analysis and identity proofing software to analyze and verify that an acceptable form of official identification presented by the signor and witness is not fraudulent.

After the remote document has been signed by the principal, it must be transmitted to the notary for officiating. The notary must confirm that the document transmitted is the same as the one signed remotely in the notary’s presence before applying the notary stamp and signature to the document.

For an affidavit, the notary must administer an oath during the audio-visual conference and the principal signs in view of the notary. After signing the document is transmitted to the notary.

The remote notarized document must include the following statement: “This remote notarial act involved the use of communications technology”.

The notary must make an audio-visual recording of the remote notarization and ensure that there is a back-up of the recording. The recordings must be kept for no less than ten (10) years. The notary may authorize a third-party to retain the recordings on behalf of the notary, provided that all recordings kept by the third-party are available to the Secretary of State upon request.

The notary is also required to keep a contemporaneous journal of all remote notarizations. The journal must be kept for as long as the notary remains a notary plus five years.

Each journal entry must be made at the same time as the notarial act and include all of the following:

• the date and time of the notarial act,
• the name of the remote signor,
• the name of the audio-visual technology used to perform the notarization,
• the number and types of documents officiated, and
• the type of identification and credentials presented by the signor.

County Clerks may not require an additional fee and must accept for recording a copy of the electronic record if it has been certified by a notary as an authentic copy of the original document.

ABOUT THE NOTARY

At this time, any notary commissioned by the NYS Department of State can act as a traditional or remote notary. No separate application, license or fee is required.

On or before January 31, 2023, the Department of State will publish regulations which will require notaries who wish to provide remote notarization to register with the NYS Department of State, Division of Licensing Services; attest their capability to perform remote notarization and pay the required license fee to act as a remote notary.

https://dos.ny.gov/notary-public#remote-notarization-faqs

Remote Notarization FAQs

What is remote notarization?
“Remote notarization” is a form of notarization where the notary officiates the document remotely through audio-visual technology and other security protocols. Remote notarization can be performed by a notary public by traditional ink (e.g., pen) or electronic signature.

How is remote notarization performed?
To provide a remote notarization, the notary public must be physically located within the State of New York at the time of the notarization.  The notary must identify the remote signor (also known as the “principal”) of the document through any of the following three methods:

Commercial software is available to notaries public to perform identify proofing and credential analysis.

Regardless of the method used to confirm the identity of the signor, the notary must be able to see and interact, in real-time, with the remote signor of the document through audio-visual communication technology.  This technology must have security protocols in place to prevent unauthorized access.  The notary must make and keep an audio-visual recording of the remote notarization, and ensure that there is a back-up of the recording.

After the remote signor has executed the document, it must be transmitted to the notary public for officiating.  The notary must confirm that the document is the same as the one signed remotely in the notary public’s presence before applying the notary stamp and signature to the document.  The following statement must be added to the jurat “This remote notarial act involved the use of communication technology.”

What is credential analysis?
Credential analysis is a process where a third-party service validates a government-issued identification presented by an individual through a review of public and proprietary data sources.

What is identity proofing?
Identity proofing is a process or service through which a third party confirms the identity of a signor through review of personal information from public and proprietary data sources.

What is the difference between credential analysis and identify proofing?
Credential analysis validates the authenticity of the principal’s government-issued identification, and identity proofing validates the identity of the individual principal.

How long must a notary retain the audio-visual recording of each remote notarization performed?
A recording, containing both audio and video, of the remote notarization must be retained by the notary for at least ten (10) years. The notary must take reasonable steps to ensure a backup recording of the remote notarization exists and is secured from unauthorized use. The notary may authorize a third party to retain the recordings on behalf of the notary, provided that all recordings retained by a third party be made available to the Secretary of State upon request.

Is a notary journal required?
Yes, the notary public must keep a journal of all remote notarizations performed. Each journal entry must be made contemporaneously with the performance of the notarial act, and each entry must include the date and approximate time of the notarization, the name of the remote signor, the audio-visual technology used to perform the notarization, the number and type of documents officiated and notarial services provided, and the type of identification/credential presented by the remote signor of the document or documents.  The journal must be kept by the notary public for as long as they remain a notary and for an additional five years thereafter.

How much can a notary charge for remote notarization?
A notary public may charge $5.00 per act/signature. If the notary is not performing a remote notarization, the fee cannot exceed $2.00 per act.

Does the notary have to provide remote notary services?
No, if the notary does not have the appropriate technology or capability to provide such services, or does not wish to engage at all in remote notarization, a notary may decline to provide remote services. Additionally, a notary may and should refuse to provide remote notary services if the notary does not believe the person signing the document remotely has capacity to sign or if the notary does not believe the remote signor is signing the document voluntarily.

Do notaries have to register with the Secretary of State to provide remote notary services?
Any notary public commissioned by the NYS Department of State can act as a traditional or remote notary. No separate application or license is required, and the notary is not required to pay any additional fee to the Department of State or the County Clerk where the notary is currently commissioned.  On January 31, 2023 the rules for remote notarization will change.  One significant change is that as of January 31, 2023, any notary wishing to provide remote notarization, must register the capability to perform electronic notarizations with the NYS Department of State, Division of Licensing Services, and pay the requisite fee (which is to be determined and established in regulation) to act as an electronic notary.

Will remotely notarized documents be accepted by a county clerk or other government offices?
Yes, the new law states, in part, “[a] county clerk, city registrar, or other recording officer where applicable shall accept for recording a tangible copy of an electronic record and that is otherwise eligible to be recorded under the laws of this state if the record has been certified by a notary public or other individual authorized to perform a notarial act.” New York Executive Law § 135-c(12)(b). To be accepted, the notary would first have to certify the remotely notarized document.  New York Executive Law § 135-c(12)(a). Specific questions about filing such documents should be directed toward the filing office where the document will be submitted.