Remote notarization is here to stay
Nearly all states without a remote online notarization (RON) law acted to adopt some form of remote notarization in response to the coronavirus disease 2019 (COVID-19) pandemic. Many of these states have now enacted permanent RON laws, or remote ink notarization (RIN) laws, while others ended their state of emergency without permanent adoption in place.
As of the date of this publication, 36 states have enacted RON laws, some of which include provisions also enabling RIN: Alaska, Arizona, Arkansas, Colorado, Florida, Hawaii, Idaho, Illinois (effective July 1, 2022), Indiana, Iowa, Kansas (effective January 1, 2022), Kentucky, Louisiana (effective February 1, 2022), Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey (effective October 20, 2021), New Mexico (effective January 1, 2022), North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Utah, Vermont (requires regulations to become effective), Virginia, Washington, West Virginia, Wisconsin and Wyoming.
Additionally, two states have enacted standalone RIN laws: Alabama and South Dakota.
With respect to recent changes in Illinois, it is unclear whether the state supports any form of remote notarization. In June 2020, when the Illinois legislature adopted SB2135 approving the governor's executive orders enabling remote notarization, the bill incorporated remote notarization into the state's Electronic Commerce Security Act (ECSA) and made remote notarization effective for the duration of the COVID-19 emergency. However, on June 25, 2021, the Illinois legislature enacted SB2176 which repealed the ECSA in its entirety and replaced it with the Uniform Electronic Transactions Act (UETA). The Illinois UETA does not include any provisions enabling remote notarization. Now that the ECSA has been repealed and the last executive order permitting remote notarization expired without renewal or extension, the status of remote notarization in the state is unclear – although the Secretary of State still appears to support remote notarization as formerly permitted under the ECSA. This status will be clarified once SB2664 becomes effective in July 2022, enabling RON in the state.
Of the remaining 12 states, California and South Carolina never adopted any form of remote notarization during the COVID-19 pandemic. The remote notarization orders of Delaware, New York and New Hampshire lapsed or were terminated in June, apparently without renewal. The other seven states have continued their pandemic temporary adoption of remote notary through at least the end of this month – Connecticut, Georgia, Maine, Massachusetts, Mississippi, North Carolina and Rhode Island.
We are also starting to see case law supporting remote notarization. In Ryerson v. Ryerson, 2021 N.Y. Slip. Op. 21172, the Supreme Court of New York held that a notary acting under the state's temporary COVID-19 law enabling remote notarization acted in a sufficiently timely manner when executing the notarial certificate of acknowledgment within four days of the parties' execution of a separation agreement before the notary using Zoom technology. The parties also complied with some of the terms of the separation agreement before the defendant brought the pending motion seeking that the agreement be declared void because the parties failed to send a signed version of it to the remote notary using fax or email promptly after signing, as required by NY Executive Order No. 202.7.
The parties met together at the marital residence and jointly conducted the Zoom audio-video conference with the notary, presented the notary with their driver's licenses and verbally confirmed they were in New York state. Additionally, the notary required each party to verbally confirm at that time that each party was comfortable signing the agreement, after which the notary watched each party sign the agreement on the Zoom video feed. Each party also verbally confirmed they signed it. However, the plaintiff then stated she did not have a document scanner or fax machine at the marital residence. While still on the Zoom conference, the notary instructed the plaintiff to mail the signed agreement back to him. The notary received the signed agreement by mail approximately four days thereafter and completed the notarial certificate of acknowledgment.
The court found no indication in New York notarial law or case law of any time limitation on the notary's execution of a certificate of acknowledgment. It determined that all requirements of the acknowledgement were met and the delay of delivery in this case was not sufficient to render the acknowledgment ineffective as a matter of law. The case appears to stand for the proposition that minor failures to strictly comply with remote notarization processes may not render the notarized document void so long as the underlying purposes of the notarial act are fulfilled.
To stay current on the status of remote notarization in the wake of COVID-19, see our alert, Coronavirus: Federal and state governments work quickly to enable remote online notarization to meet global crisis, which is updated monthly with recent developments.
