Reminder – A power of attorney is not permitted to be notarized via remote notarization.

Recently, we have been presented with several power of attorneys notarized via RON (remote notarization). Please be sure to review very carefully any powers submitted at or prior to closing.  

The statutory authority for the exclusion of Powers is noted below.

State Technology Law “STL” § 304 Permitted the use of an electronic signatures and stated electronic signatures shall have the same validity and effect as the use of a signature affixed by hand.

However, State Technology Law § 307 states that certain documents are excluded from the permissive use of electronic signatures; among the documents excluded are: Wills, trusts, orders not to resuscitate, powers of attorney and health care proxies.

https://codes.findlaw.com/ny/state-technology-law/stt-sect-307.html

 

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.

Gov. Hochul signs RON bill

The bill has two parts Part One takes effect when the amendment is passed in January. At that time, remote notarization will be permitted for paper and electronic documents, so-called RIN, Remote Ink-signed Notarization. The RIN process has previously been in use under Executive Order, issued during the pandemic. Part One of the bill “sunsets” on January 31, 2023. Part Two provides a period of time for the Secretary of State to develop guidelines and regulations for true remote online e-notarization. On January 31, 2023, the bill will allow notaries public to register with the Secretary of State as an electronic notary public  to perform in-person electronic notarization and remote notarization for electronic documents. As always, if there are questions, agents should refer to instructions from their underwriter. Land Title will prepare a FAQ document in the coming weeks.

Land Title will prepare a FAQ document in the coming weeks.