Bulletin: VT2020001

Dear Associates:

Vermont Emergency Rules for Remote Notarization

As a result of the COVID-19 pandemic, the Vermont Secretary of State has issued Emergency Rules Enabling Use of Remote Notarization (Hereafter “Emergency Rules”). The Emergency Rules are effective March 24, 2020, and shall be effective for 180 days. A copy of the Emergency Rules can be found using the following link

https://sos.vermont.gov/media/byvjsc2a/emergency-rules-remote-notary-final-2020-0324.pdf

The Secretary of State also issued guidance on the Emergency Rules, which guidance can be found at the following link:

https://sos.vermont.gov/media/mixppvcq/emergency-rules-remote-notary-final-2020-0324.pdf

What is a Remote Notarial Act?

As defined by the Emergency Rules, a “Remote Notarial Act” is a notarial act performed at the request of a remotely located individual by means of a secure communications link with respect to a tangible record that a notary public may perform under the law of this State. The term includes taking an acknowledgement, administering an oath or affirmation, taking a verification on oath or affirmation, attesting a signature, and noting a protest of a negotiable instrument. A Remote Notarial Act is not a remote online notarization which is frequently referred to as RON. The guidance published by the Secretary of State also makes clear that the term “secure communication link” is defined as any communication technology that allows the Signer and Notary to see and hear each other simultaneously.

What Conditions Must be Satisfied for the Notarial Act to be Effective pursuant to the Emergency Rule?

1. The Notary Public (hereafter “Notary”) must be commissioned in Vermont and must be physically located in Vermont while performing the notarial act;
2. The remotely located individual (hereafter the “Signer”) must be physically located in Vermont during the notarial act;
3. Secure communication technology must be used that allows the Notary and Signer to communicate with each other by BOTH sight and sound. When necessary, this secure communication technology would facilitate communication with Signer’s who have vision, hearing and/or speech impairments;
4. Prior to performing the notarial act, the Notary must have either (1) personal knowledge of the identity of the Signer; (2) have evidence of the identity of the Signer from a credible witness appearing before the Notary; or (3) is provided two different types of identification by the Signer;
5. The Notary must confirm that the record before the Notary is the same record upon which the Signer executed their signature.;
6. The notarial act is performed on either (1) the original record executed by the Signer or (2) on an electronic transmission of the record that is provided to the Notary by the Signer and printed prior to the notarial act.
7. The Notary must create an audio-visual recording of the performance of the notarial act which shall be retained for a period of at least 7 years from the date of the act.
8. The record must contain a certificate of the notarial act, which shall be hand-written, imprinted by a stamp or embosser (or both) containing the following information
   1. Signature of the Notary;
   2. Legibly printed name of Notary;
   3. Commission number of Notary;
   4. Date of Expiration of Notary’s commission;
   5. Title of Notary (i.e. “Notary Public”);
   6. Date document is signed by Notary;
   7. Date document is signed by Signer;
   8. The County/State in which the notarial act is performed;
   9. A statement that the notarial act was performed remotely

How long are the Emergency Rules Effective?

These Emergency Rules are effective immediately and shall be effective until September 20, 2020, unless the effective dates are modified by the Secretary of State.

Suggestions for Audio/Video Conferencing Technology:

The Emergency Rules do not identify technology which would satisfy the audio/visual requirements of the Emergency Rules and care should be taken that any platform chosen adequately provides for the ability to record the live session and that both the Signer and the Notary have devices which support the chosen platform. As a convenience to our agents and to aid your search in locating a service provider, we’ve listed some providers which offer audio/video conferencing and the ability to record such conference.

Zoom: https://support.zoom.us/hc/en-us/articles/203741855-Cloud-recording

Microsoft Teams: https://support.office.com/en-us/article/record-a-meeting-in-teams-34dfbe7f-b07d-4a27-b4c6-de62f1348c24

GoToMeeting: https://www.gotomeeting.com/features/online-meeting-recording

Cisco Webex: https://help.webex.com/en-us/nzpa89j/Manage-Cisco-Webex-Meetings-Recordings

NOTE: Because the Emergency Rules specifically exclude “Remote Online Notarizations” vendors, such as Notarize and Pavaso; these are not appropriate for use under the Emergency Rules.

STEWART UNDERWRITING GUIDELINES

COMPANY POLICY

Because the Emergency Rules were recently enacted and haven’t yet been judicially tested, and because of the evolving technologies available and the unique issues presented by remote notarization in the real estate context, all Issuing Offices must exercise care when asked to insure instruments that have been remotely notarized.

The Company requires compliance with the following in order to insure a transaction in which one or more documents have been notarized pursuant to the Emergency Rules:

Requirements Applicable to Remote Notarizations

1. The policy amount does not exceed $1,000,000.00. For liabilities above this amount, underwriting approval must be obtained;

2. The Remote Notarization must comply with all the conditions of the Emergency Rules. Evidence of compliance in the form of a certification must be executed by the Notary. Specifically, the certification must provide a statement that both the Notary and Signer expressly consented to the remote notarization; a statement that each party was physically located in the State of Vermont during the notarial act; a statement that all of the conditions of the Emergency Rules were satisfied; a statement that the notarial act was recorded and shall be saved for at least 7 years; and a Statement that the Remote Notarization Rules had not expired as of the date of the notarial act. Click here for a sample certification;

3. If the Notary confirms the identity of the Signer via two different types of identification as provided in the Emergency Rules:

a. One form must be a valid Vermont Driver’s License or a United States Passport; and

b. The two forms of identification must be held up to the video recording device long enough for the Notary to confirm the forms of identification and that they provide satisfactory evidence of identity.

4. The Notary and the Signer both state on the audio visual recording the town and state in which they are located. If either Signer or Notary state that they are located in a state other than Vermont, the transaction may not be insured.

5. The Lender, the Signer, and any other party to the transaction, other than Notary, must consent in writing to the remote notarization. Said consent must be in writing and maintained in the Issuing Agent’s file. Click here for sample STG form;

6. On the same day as the execution of the document which requires notarization, the original record, with the wet signature, must be sent or delivered to the Notary for attachment of the Notary’s original certificate. That instrument (comprising the original record and the original Notary certificate) shall be sent for record in the appropriate municipal office;

7. Powers of Attorney for real estate transactions may not be remotely notarized pursuant to the Emergency Rules as a witness is required to be present at the time of execution.

8. Any remote notarizations occurring outside of Vermont, which are presented for use in a Vermont transaction, may not be insurable and must be approved by a Stewart underwriting counsel prior to insuring;

9. The issuing agent must verify with the appropriate municipal recording clerk that the document will be accepted for recording.

If you have any questions relating to whether the circumstances of your particular transaction would be insurable with a remote notarization pursuant to the Emergency Rules, please contact a Stewart Title Guaranty Company underwriter.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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