Mandatory business closures and social distancing requirements have made it difficult to conduct certain business transactions, including those that require documents to be notarized. To help ensure that business can proceed, both New York and New Jersey have authorized notaries to perform services remotely.
New Jersey Enacts Legislation Authorizing Remote Online Notarizations
Assembly Bill 3903, which was signed into law by Gov. Phil Murphy on April 14, 2020, temporarily authorizes New Jersey notaries and notarial officers to perform notarial acts for remotely located individuals during the public health emergency and state of emergency declared by Gov. Phil Murphy in Executive Order 103. The bill took effect immediately and will expire upon the rescission of Executive Order No. 103 by the Governor.
Under AB 3903, a New Jersey notary may perform notarial acts using communication technology for a remotely located individual if the following requirements are satisfied:
Verification of an Individual’s Identity
- The notary has personal knowledge of the identity of the individual appearing before the notary public or officer;
- The notary has satisfactory evidence of the identity of the remotely located individual from a credible witness appearing before the notary public or officer; or
- The notary has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
Authentication of Documents
- The notary public or officer is reasonably able to confirm that a record before the notary public or officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature; and
Authentication of Notarization
- The notary public or officer or a person acting on their behalf creates an audio-visual recording of the performance of the notarial act;
- The notary public, or a third-party acting on his or her behalf, must retain the audio-visual recording for at least 10 years after the recording is made; and
- The certificate and name affixation required by current law must indicate that the notarial act was performed using communication technology.
There are additional requirements for individuals located outside the United States:
- The record must be filed with or relate to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States;
- Involve property located in the territorial jurisdiction of the United States; or
- Involve a transaction substantially connected with the United States.
- Additionally, the act of making the statement or signing the record must not prohibited by the foreign state in which the remotely located individual is located.
Not all documents may be remotely notarized. The new law expressly does not apply to records governed by the Uniform Commercial Code, other than N.J.S.12A:1-107, N.J.S.12A:1-206, the provisions of the “Uniform Commercial Code – Sales,” chapter 2 of Title 12A of the New Jersey Statutes, and the provisions of the “Uniform Commercial Code – Leases,” chapter 2A of Title 12A of the New Jersey Statutes; or a statute, regulation or other rule of law governing adoption, divorce or other matters of family law.
New York Governor Issues Executive Order Authorizing Remote Notarizations
On March 18, New York Governor Andrew Cuomo signed an Executive Order authorizing notary publics to officiate documents remotely. Under Executive Order No. 202.7, any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
- The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
- The person must affirmatively represent that he or she is physically situated in the State of New York;
- The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
- The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
- The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.
In subsequent guidance, the New York Department of State advised that notary publics using audio-video technology must continue to follow existing requirements for notarizations that were unaltered by the Executive Order, including, but is not limited to, placing the notary’s expiration date and county where the notary is commissioned upon the document. The guidance also states that the notary must print and sign the document, in ink, and may not use an electronic signature to officiate the document. However, the signatory may use an electronic signature, provided the document can be signed electronically under the Electronic Signatures and Records Act. If the signer uses an electronic signature, the notary must witness the electronic signature being applied to the document, as required under Executive Order 202.7.
The Department of State also recommended two best practices, with the caveat that not following them will not invalidate the act or be cause for discipline. It recommends that the notary keep a notary log of each remote notarization; and indicate on the document that the notarization was made pursuant to Executive Order 202.7.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.