Notary Legislation

Notary Legislation in the United States

State Notary Laws and Procedures

(Source: National Association of Secretaries of State (NASS))

While the notarization process varies in each state, state notary laws and procedures share a number of important similarities. These include the basic functions of notaries, the qualifications for becoming a commissioned notary, and the elements of a proper notarization. The use of a journal or a record book of notarial acts is also a common requirement or recommendation, and a number of states have adopted statewide requirements for notary training and education.

There is a lot of variation in state laws and penalties related to notarial misconduct, but all states recognize notarizations as official acts and have standards and procedures for revoking notary commissions and punishing serious offenses. With electronic notarization already a widespread practice throughout the U.S. thanks to the 2000 Electronic Signatures in Global and National Commerce Act (E-SIGN), which gave notaries the authority to use electronic signatures in performing their duties, the process is continually evolving. Several states have adopted new standards and procedures to regulate this process and eliminate obstacles to its use.

A number of federal and uniform state statutes have been developed—and updated—to assist states with this work. The list includes the NASS National E-Notarization Standards, the Uniform Electronic Transactions Act (UETA), the Uniform Real Property Electronic recording Act (URPERA), the Revised Uniform Law on Notarial Acts (RULONA), and the Model Notary Act.

It should be noted, however, that electronic notarizations involve the same basic elements as paperbased notarizations. Among these elements is the requirement in nearly all states that a document—whether paper or electronic—be notarized in the presence of the signer. Legislation recently passed in Virginia permits electronic notarization when the signer is not personally present, provided that satisfactory evidence of the identity of the signer established. Under the law, satisfactory evidence may be based on video and audio conference technology in accordance with applicable standards. See Va. Code Ann. §§ 47.1-2, 47.1-15 (2010). (…)

States are ultimately responsible for the role that notaries play in enhancing the veracity of the notarial act, preventing fraud and forgery while protecting the public interest. (…)

State Commission and Regulation of Notaries

Although basic notary functions are similar throughout the country, the laws guiding the commission and regulation of notaries often vary from state to state. All states require that an individual apply for a notary commission from the appointing authority, which in most states, is either the Secretary of State’s office (27 states) or the Governor’s office (15 states). Regardless of the appointing authority, the Secretary of State is responsible for processing notary applications and/or maintaining notary records in 44 states and the District of Columbia.

In almost all states, notary commissions are issued for a specified, renewable term. The length of the term depends on the state, but typically lasts between four and seven years.
In order to receive a notary commission, all states require that an applicant be at least 18 years old and meet state residency requirements. A number of states, including Oklahoma and Washington, permit non-residents to apply for a notary commission if they are employed in the state or if they regularly conduct business in the state. (…)

Many states have restrictions on applicants with criminal histories, although in most of these states the restrictions depend on a variety of factors, including the type of crime that was committed (e.g. whether it involved fraud or dishonesty) and the duration of time that has passed since the crime occurred.

It is also becoming more common for states to require that applicants complete a notary training course and/or pass a test on relevant subject matter. Eleven states currently have an education requirement for notaries, and fourteen states have an examination requirement.

Thirty states also require notaries to file a bond prior to receiving their commission. The bond amount varies by state, but tends to be somewhere between $5,000 and $15,000. (…)

Uniform and Model Acts

Several uniform and model acts have been developed in an effort to standardize state notary practices. The most recent and comprehensive of these acts are the Revised Uniform Law on Notarial Acts (RULONA) and the Model Notary Act of 2010.

The Revised Uniform Law on Notarial Acts was approved and recommended in July 2010 by the Uniform Law Commission (ULC), an organization of attorneys, judges, and law professors that drafts proposals for uniform legislation and fosters their adoption by state legislatures. The Revised Uniform Law on Notarial Acts has also been submitted for approval by the American Bar Association. The ULC is also referred to as the National Conference of Commissioners on State Laws (NCCUSL).

It is an updated version of the ULC’s 1982 Uniform Law on Notarial Acts (ULONA), which has been adopted in eleven states and the District of Columbia. Delaware, District of Columbia, Kansas, Minnesota, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, Oregon, Wisconsin & Wyoming. See Uniform Law Commission, Uniform Notarial Acts Legislative Fact Sheet.

The Revised Uniform Law on Notarial Acts specifies the content and form of specific notary acts and provides for recognition of notarized materials from other jurisdictions (Unif. Law on Notarial Acts (ULC 1983)).

The Uniform Law on Notarial Acts expands on the provisions in ULONA and includes new requirements in several
areas, including notary qualifications and electronic notarization. Rev. Unif. Law on Notarial Acts (ULC 2010). New provisions in RULONA include use of a journal for chronicling notary acts; methods of identifying individuals before performing a notarial act; electronic notarization procedures; contents of the notary stamp; qualifications for commission as a notary; prohibited notary acts and grounds to impose sanctions; development of a state database of notaries; offering notary instruction courses; and an exam for new notaries.

The Model Notary Act, published in 1973 by the National Notary Association (NNA) and updated in 2010, covers most notarization subject areas (Model Notary Act (NNA 2010)).

More than forty states and territories have adopted provisions from the Model Notary Act.

In addition to the Revised Uniform Law on Notarial Acts and the Model Notary Act, several other uniform acts impact the notary process: the Uniform Acknowledgment Act (UAA); the Uniform Recognition of Acknowledgment Act (URAA); the Uniform Electronic Transaction Act (UETA); and the Uniform Real Property Recording Act (URPERA). Each of these acts is discussed in subsequent sections of this report.

State Electronic Notarization Laws and Procedures

At least 16 states have electronic notarization laws or policies that go beyond the basic UETA provision, although they vary in terms of how comprehensive and specific they are with respect to electronic notarization procedures. It is also important to note that states may have additional or alternative policies and standards in place that are not included in state statutes or regulations.

As previously mentioned, all states require that an individual seeking to have a document electronically notarized appear in person before the notary at the time of notarization. Colorado’s law specifically emphasizes that electronic notarization is not remote notarization–the signer must appear in the presence of the notary and swear, affirm, or acknowledge the electronic document being notarized. See Colorado Secretary of State, Electronic Notary Public.

Many state electronic notarization laws use definitions and requirements found in the NASS standards, allowing for flexibility in the type of technology used, but specifying the basic requirements for securing the different notarial components to the electronic document (e.g. electronic signature and seal). For example, five states (Florida, New Mexico, North Carolina, Pennsylvania, and Virginia) require that the electronic notarial components be attached to or logically associated with the electronic document in a way that will reveal any subsequent changes to the document (FL, NM, NC, PA, VA.). Other states have similar provisions.

Arizona requires the electronic notary token and electronic signature to be invalidated if there are any subsequent changes to the electronic document. In Delaware, the electronic seal and signature must be attached in a way that prevents any subsequent changes to the electronic document. Meanwhile, Minnesota requires the electronic seal to be logically and securely affixed to or associated with the electronic record.

State electronic notarization laws also include a number of additional similarities that are derived from the NASS standards. For example, nine states require that a notary register with the Secretary of State’s office prior to performing electronic notarizations (AZ, CO, DE, KS, MN, NV, NM, PA, VA. For example, see Minnesota’s E-Notarization Authorization Form). In Nevada, an individual may apply to become an electronic notary if he/she has been a notary in the state for at least four years, completes an electronic notary education course, and passes and electronic notary exam. Seven states require that a notary’s electronic seal and/or signature be capable of independent verification (42 AZ, DE, FL, NM, NC, PA, VA.).

In North Carolina, the electronic seal and signature are independently verifiable, capable of government or
third-party authentication of a notarial act, a notary’s identity, and a notary’s authority. Eight states require that the notary’s electronic seal and/or signature be unique to the notary and under the notary’s sole control (or have a similar requirement). (AZ, DE, FL, NV, NM, NC, PA, VA.)

In New Mexico, the technology used to perform electronic notarizations must be attributed solely to the electronic notary, and the electronic notary must have exclusive access to that technology.

In each of the states that require electronic notaries to register, the notary must identify the type of technology that will be used to carry out electronic notarizations. In five of these states (Arizona, Kansas, Nevada, North Carolina, and Pennsylvania), an electronic notary must use the services of a state-approved vendor. In Virginia, an electronic notary must obtain a digital certificate/signature that complies with technical requirements, such as PKI infrastructure and use of a certificate authority (Virginia Secretary of the Commonwealth, Electronically-enabled Notary Public Instructions and Application).

More states will develop electronic notarization procedures in the coming years, particularly those that are implementing URPERA. URPERA requires states to adopt standards for the electronic recording of real estate documents, many of which require a notarized acknowledgment (Unif. Real Prop. Elec. Recording Act § 5).

In 2009, Wisconsin approved electronic recording standards that require electronic documents to be notarized under standards adopted in state statutes ( Wis. Admin. Code, Dept. of Admin. §70.07, 2010). In 2010, South Carolina adopted electronic recording standards requiring electronic notarizations to comply with rules developed by the Secretary of State (S.C. Code Regs. 113-330, 2010). Also in 2010, Illinois adopted electronic recording standards that require electronic notarizations to comply with existing state laws. (Ill. Admin. Code tit. 14, pt. 1400.30, 2010).






Leave a Reply

Your email address will not be published. Required fields are marked *