Bulletin: NY000668

On December 22, 2021 NY Governor Kathy Hochul signed Bill 1780C which set the groundwork for Remote Online Notarization (“RON”) in New York and thereafter on February 25, 2022 signed Bill 7780 which clarified portions of Bill 1780C and also made Remote Ink Notarization (“RIN”) available in New York, effective immediately. This RIN availability is valid only until January 31, 2023, at which time NY will move to a “true” RON platform. In the interim the NYS Department of State is charged with establishing processes for the registration of electronic notaries, determine appropriate fees, and develop regulatory procedures pertaining to “electronic notarial acts” and “electronic notary public” that are to take effect on January 31, 2023. Links to the statutes may be found here: 

https://www.nysenate.gov/legislation/bills/2021/S1780

https://www.nysenate.gov/legislation/bills/2021/s7780
 

In its simplest terms, remote online notarization (“RON”) refers to the process of having a state-licensed notary public notarize a document remotely when the signer is not in the same physical presence as the notary.

During the pandemic New York Governor Andrew Cuomo permitted RIN to occur through a series of Executive Orders. More information regarding this RIN can be found here:

https://www.virtualunderwriter.com/en/bulletins/2020-3/NY000641.html

The difference between executive order RIN and the legislative RIN is massive; RIN (and RON) must meet a much higher threshold of identification security. The new statute requires the following:

• Audio & visual capability in which the signor and notary can communicate directly with each other in “real time”.
• The interaction must be recorded, and the recording of the remote notarization (and a back-up) must be maintained for at least 10 years.
• The recordings must be made available to the Secretary of State and the recordings may be retained by a third party.
• A notarial journal detailing each transaction must be retained for a minimum of 5 years after the notary public leaves office.

Per the statute for remote notarization involving paper documents, the principal may transmit by mail, fax or electronic means a legible signed record directly to the notary public, and the principal may appear before the notary public by means of communication technology to perform the notarial act in accordance with this section. The notary public may notarize the record within a reasonable time and transmit the record back to the principal by mail, facsimile or secure electronic means. An electronically transmitted document notarized pursuant to this paragraph is considered an original document. 

As for authenticating the identity of the signer, Section 3 of the statute states:

3.  The notary public must be able to verify the identity of the principal at the time the notarial act is provided by one of the following methods:

A.    The Notary public’s personal knowledge of the principal; OR

B.    Identification of the principal who appears remotely before the notary by means of communication technology by each of the following:

                      I.        Remote presentation by the principal of a credential;

                     II.        Credential analysis; AND

                   III.        Identity proofing of the principal; OR

C.    oath or affirmation of a credible witness who personally knows the principal and who is either personally known to the notary public or who is identified by the notary public under paragraph (b) of this subdivision.

Credential analysis and Identity proofing are defined by the NYS Department of State in their FAQ section of the new law; a link is provided at the end of this bulletin for your convenience.  

A list of these third-party service providers acceptable to Stewart may be found here:

https://www.virtualunderwriter.com/en/ron.html

Pursuant to the statute, the notary must be physically present in New York at the time of the remote notarization although the signer can be located anywhere outside New York. If the signer is located outside the United States the documents notarized must pertain to a legal, governmental or property issue or transaction related to the United States.

Regarding the acknowledgements taken remotely, the following language should be added to the notary blocks:

"This remote notarial act involved the use of communication technology."

Most importantly, when the Certificate of Authenticity is annexed to a document, the document is required to be recorded by a county clerk or recording officer, assuming all other recording criteria is satisfied. A sample of the Certificate of Authenticity is set forth in the legislation (link above).

Some questions have arisen with regard to documents pertaining to New York transactions that have been notarized OUTSIDE NY via another State’s RON statute; the form of Notary is acceptable in NY if the Notary meets the foreign state’s RON criteria and you have verified the recordability of the document. Additionally, a Certificate of Conformity (NY Real Property Law Section 299-A) would be recommended in this regard.

Kindly be advised that the use of RIN/RON is not mandatory; as such it is highly recommended that all parties involved, including but not limited to lenders and their counsel, consent to the use of RIN/RON.

Stewart will be issuing additional informational bulletins as developments occur, including but not limited to any new legislation, case law and regulations that are being developed by the NYS Department of State. You are also encouraged to check the NYS Department of State for additional information and their FAQ section:

https://dos.ny.gov/notary-public

If you have any questions regarding this bulletin, please contact Stewart Title Insurance Company Legal Services at 212-922-0050.