Bulletin: NM2021003

Dear Associates:

Marijuana

HB 2 the "Cannabis Regulation Act"

Allows for the production, sale, and recreational use of cannabis within parameters set by the statute and regulations to be promulgated by the cannabis control division of the State Regulation and Licensing Department.

What the title company should know: This bill legalizes production, sale and use of marijuana to begin no later than April 1, 2022.

What the title company should do: Stewart Title Guaranty Company is not currently insuring title to land that is known to be used or intended to be used for any lawful purpose under state law for recreational or medical marijuana activities, including cultivation, storage, transport, manufacture, retail, or distribution (See SLS2017004). If you are asked to insure property known to be used or intended to be used for any lawful marijuana activities, please contact a Stewart Title Guaranty Company underwriter to discuss the matter.

Remote Online Notarization

SB 12 the "Revised Uniform Law on Notarial Acts"

Effective January 1, 2022, it repeals and replaces the Notary Public Act N.M.S.A. § 14-12A-1 through § 14-12A-26 and the Uniform Law on Notarial Acts N.M.S.A. § 14-14-1 through § 14-14-11.

What the title company should know: This bill revamps the state notary laws. It authorizes notaries to perform notarial acts for remotely located individuals by use of an electronic signature and two-way audio and video communication technology (“RON”). It provides that the Secretary of State will appoint notaries and maintain an electronic database of notaries and the State Ethics Commission will provide enforcement over notaries. It requires all notaries to keep a journal of all notarial acts that the notary performs and retain the journal for ten years after the last act chronicled in the journal. It provides that the Secretary of State may adopt rules to implement the Act, including prescribing the manner of performing notarial acts regarding tangible and electronic records, include provisions to ensure certificates are tamper evident, prescribing means of performing a notarial act involving remotely located individuals, establishing standards for communication technology and identity proofing, establish requirements and procedures to approve providers of communication technology and identity proofing and establish standards and time periods for the retention of an audiovisual recording of remote notarizations. The bill provides for maximum fees that can be charged for notarial acts and expressly prohibits a notary from performing a notarial act on a record in which the notary, or the notary’s spouse or domestic partner is a party, or has or have a direct beneficial interest.

What the title company should do: In order to perform RON, the Act requires the following:

1. The notary has evidence of the identity of the signing party based on: a) personal knowledge, b) an oath or affirmation of the signer’s identity by a credible witness personally known to the notary and whom the notary can identify on the basis of a passport, driver’s license or government issued nondriver identification card which is current or expired not more than one year before the act, or c) has obtained satisfactory evidence of the identity of the signer by using two different types of identity proofing;

2. The notary can reasonably confirm that the record before the notary is the same record as the remote person is signing;

3. The notary, or someone acting on behalf of the notary, creates an audiovisual recording of the notarial act;

4. If the signer is located outside the United States the act of making the statement or signing the record cannot not be prohibited by the country in which the signer is located and the record: a) is to be filed with or relates to a matter before a public official or court, governmental entity or other entity under the jurisdiction of the United States or b) involves property located in or involves a transaction substantially connected to the United States;

5. The notary certificate must indicate that the notarial act was performed using communication technology;

6. The notary (or conservator, agent, or personal representative of the notary), or a repository designated by the notary (et al.) must retain the audiovisual recording for at least ten years, unless the Secretary of State by rule provides a different period; and

7. Prior to performing any remote notarizations the notary must notify the Secretary of State that the notary will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary intends to use.

The Act defines “identity proofing” as “a process or service by which a third person provides a notarial officer with the means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.”

The Act does not provide any deadline for the Secretary of State to establish rules and standards for use in RON. Please be sure to stay current on any promulgated rules and standards in performing RON.

In addition to complying with all statutory and regulatory requirements for performing RON you must also comply with STGC’s current RON guidelines found here.

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

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