By: Joshua A. Sycoff
On January 25, 2023, the New York State Department of State adopted substantial changes to Title 19 of the New York Codes, Rules and Regulations that will significantly alter the notarization process. Most notably among these changes are: (i) heightened notarial record keeping requirements (19 NYCRR 182.9); (ii) the elimination of Remote Ink Notarization (“RIN”) and (iii) the addition of a new law effective January 31, 2023, authorizing notaries to perform electronic notarial acts via audio visual means paired with electronic signature software, labeled Remote Online Notarization (“RON”) (Executive Law Section 135-c). The new Title 19 laws on notarial acts can be found here: https://dos.ny.gov/system/files/documents/2023/01/notary-public-license-law_01.2023.pdf.
Record Keeping Requirements for In-Person Notarization:
All New York State notaries performing in-person notary services are now required to abide by strict record keeping requirements; the rules for RON are different and more cumbersome.
All notaries performing in-person notary services must now keep a journal record of certain information from each notarial act; the journal record must be maintained for ten years. The journal record must contain: (i) the date, approximate time, and type of notarial acts performed; (ii) the name and address of any individuals for whom a notarial act was performed; (iii) the number and type of notarial services provided; (iv) the type of credentials used to identify the principal, including, for verification made where a notary relies on the oath or affirmation of two witnesses who identify themselves with a valid government issued ID and who know the document signer personally, the names of the witnesses and, if applicable, the type of credential used; and (v) the verification procedures used for any personal appearance before the notary public. These journal record keeping requirements mark a significant deviation from how most New York notaries have practiced for years. Furthermore, these new requirements are somewhat ambiguous. Finally, existing notaries are not being required to pass any sort of test or re-certification related to these new rules.
One apparent ambiguity is that of section (v), which requires that the notary document the “verification procedures” used for any personal appearance before the notary. However, it is unclear what constitutes a “verification procedure” since the term is not defined. However, section 182.5 provides some guidance: “For any individual who physically appears before a notary public, satisfactory evidence of identity requires identity verification through: (1) presentation of the back and front of an identification card issued by a governmental agency, provided the card: (i) is valid and current; (ii) contains the photographic image of the bearer; (iii) has an accurate physical description of the bearer, if applicable; and (iv) includes the signature of the bearer.” In addition, while seemingly not required, best practice for notaries moving forward would be to keep a copy of the identification card.
Elimination of Remote Ink Notarization (“RIN”):
Throughout the Covid-19 pandemic, many notaries relied on what was commonly referred to as Remote Ink Notarization (“RIN”). RIN allowed notaries to notarize a signer’s wet ink signature via some sort of audio visual means whereby the notary would verify the identity of the signer, the signer would sign in wet ink from his/her remote location, and the signer would then transmit the signature to the notary, who would notarize in New York. On January 31, 2023, the temporary statute allowing for RIN was repealed and replaced with the new Executive Law §135-c, Electronic Notarization. Therefore, this type of notarization is no longer permitted.
Remote Online Notarization (“RON”):
The biggest change to the New York notary laws is the new ability of New York notaries (located in New York) to notarize electronic signatures (i.e., signatures similar to docusign) when the signer is located anywhere in the world (as long as the notarized document has to do with a matter before a United States court or involved property in the United States). Additionally, notaries performing such electronic notarizations can now charge a fee of up to $25 per notarial act performed (even if there are multiple notarization acts within a single session).
Notably, the new electronic notarial act law requires existing notaries to re-register with the state (and pay the applicable $60 registration fee). Notaries are not permitted to perform RON without registering through the Department of State and following the proper registration procedures and submitting (via the notary’s New York business express account) a sample version of an electronically notarized document using a digital signature and certificate (presumably supplied and generated by the notary’s statutorily-compliant software of choice).
The new electronic notarial act law is likely to dramatically affect the efficiency of transactions and litigation in New York, but not before law firms, title companies, lenders and others figure out a way to properly comply with the regulations. To utilize RON, notaries are required to use software from providers that “meets NYS requirements”. However, at this writing, New York has not yet recommend any providers, and offers no guidance other than advising notaries to ask providers whether their software complies with the new requirements. To make matters worse, notarization misconduct carries civil liability for injured parties, exposing notaries, many of whom are attorneys, to significant risk for not properly complying with the laws. Although RON is now technically in effect, it will likely take some time before it becomes widely used by notaries.
(Joshua A. Sycoff is an Associate in BBG’s Transactional Department, and can be reached at 212-867-4466 ext. 437 (firstname.lastname@example.org)).