Virtual Notarization

May 15, 2019
Virtual Notarization

Virtual Notarization, or Remote Notarization, is the process by which a commissioned notary public provides remote Electronic Notarization, or e-Notarization, services through the use of a webcam based software similar to Skype or Facetime.

In order to fully understand Virtual Notarization, it is necessary to understand the development of e-Notarization and the proposed changes to Pennsylvania’s Revised Uniform Law on Notarial Acts, 57 Pa.C.S.A. § 301 et seq (“RULNA”).

The Electronic Notarization Initiative was first established in Pennsylvania on January 30, 2006, to enhance economic development in the Commonwealth through the authorization of e-Notarization. The initiative was the first of its kind in the nation. e-Notarization permits qualified Pennsylvania notaries public to perform notarizations electronically, in compliance with provisions of RULNA and the Uniform Electronic Transactions Act, 73 P.S. § 2260.101 (“UETA”).

e-Notarization is the process by which a commissioned public notary electronically notarizes a document with a digital signature or certificate. Since 2006, the Pennsylvania Department of State has taken significant steps to make e-Notarization more accessible to the approximately 80,000 notaries public across the Commonwealth. e-Notarization was the first step in moving towards the enactment of Virtual Notarization; however, the five major components of traditional paper and ink notarizations still apply. Those components are personal appearance of the person described in the instrument before the notary public, production of a current government-issued identification card, acknowledgement by the signer, lack of duress, and awareness.

UETA provides legal recognition in the Commonwealth for electronic documents giving the electronic form the same force and effect as the paper original. 73 P.S. § 2260.303. Furthermore, pursuant to UETA, if the law requires a signature to be notarized or acknowledged, the requirement is satisfied by an electronic signature. 73 P.S. § 2260.307. However, UETA does not eliminate the personal appearance and other requirements of RULNA.

Virtual Notarization would take the process one step further and permit an authorized notary public to provide remote notarization services. As of this writing, appearance by webcam does not satisfy the personal appearance requirement of RULNA.

Currently, there are 15 states that have enacted Virtual Notarization laws. The following five states have Virtual Notarization laws that have gone into effect: Nevada, Minnesota, Montana, Texas, and Virginia. In 2017, Pennsylvania Senator Mike Folmer, introduced an amendment to RULNA that would authorize Virtual Notarization. The bill was amended in 2018, but died at the end of the legislative session. It is likely that a new bill will be introduced during the 2019-2020 legislative session.

RULNA provides that a notarial act performed in another state has the same effect under the laws of the Commonwealth as if it were performed by a notary public of the Commonwealth if the act performed in that state is performed by an individual authorized by the law of that state to perform the notarial act. 57 Pa.C.S.A. § 31. Therefore, while Pennsylvania does not permit Virtual Notarization, a notarial act performed in another state, which does authorize Virtual Notarization, would likely be recognized as a valid notarial act in the Commonwealth.

There are obvious risks and benefits to Virtual Notarization. One benefit of Virtual Notarization is ease of access for individuals to have documents acknowledged and verified. This would have a great effect on making certain transactions such as real estate closings and lending transactions easier for the consumer. Furthermore, it would likely benefit notaries by allowing them to provide their services to more consumers without the need for excessive travel. The obvious downside is a greater risk of fraud. The current appearance requirements of RULNA are intended to ensure that the person appearing before the notary is the same person who is described in the instrument and that they are not under duress. The states that have enacted Virtual Notarization legislation mitigate these risks by requiring identity proofing technology.

As the world becomes increasingly accustomed to the use of technology in carrying out services traditionally done in person with paper and ink, we will continue to see more and more disruption of traditional practices. Virtual Notarization is the next step in that direction.

Hamburg, Rubin, Mullin, Maxwell & Lupin is a full service law firm in southeastern Pennsylvania. If you have any questions about Virtual Notarization, or need guidance in real estate or other legal transactions, contact one of our attorneys today.

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