In February 2022, Governor Hochul signed into law legislation that permitted the permanent use of remote online notarization (“RON”) in New York. Remote Ink Notarizations (“RIN”), which were permitted during the pandemic, are no longer permitted and changes were recently made to the Executive Law that affects both RON and in-person notarization.
Pursuant to New York Executive Law Section 135-c, a notary is authorized to perform electronic notarial acts, provided that they first register with the Department of State and comply with new rules for performing electronic notarizations. See NY Exec. Law Sec. 135-c. As of February 1, 2023, if a notary wants to provide electronic notary services, they must register as an Electronic Notary with the Department of State.
In addition, an electronic notary must use commercially available software that complies with the Department of State’s regulations. The law requires that the notary be present in New York, but the signer can be located anywhere outside the state. The notary must be able to see and hear the signer through certain audio-visual technology and the notarization must be recorded and maintained for ten (10) years. The notary must ensure that there is a back-up of the recording. Once the signer has signed the document, it must be transmitted to the notary for notarization. The document must be presented to the notary through the software program and the following statement must be included: “This electronic notarial act involved a remote online appearance involving the use of communication technology.” For recording purposes, the notary must execute a paper certification certifying the authenticity of the document and that it is an accurate copy of the electronic record.
Although RON is permitted in New York, RIN is no longer permitted. The distinction between the two is that RIN was used to generate a paper/ink-signed document and the notary would confirm the signer’s identity through the use of communication technology. As of January 31, 2023, RIN is no longer permitted.
With respect to in-person notarizations, as of January 25, 2023, a notary must keep a journal of all notarial acts performed, including the type of identification that the notary used to verify the signer’s identity, for ten (10) years. For in-person notarization, the following items must be maintained in the journal:
- the date, approximate time, and type of notarial act performed;
- the name and address of any individuals for whom a notarial act was performed;
- the number and type of notarial services provided;
- the type of credential used to identify the principal;
- the verification procedures used for any personal appearance before the Notary; and
- for electronic notarial acts, identification of the communication technology, certification authority, and verification providers used.
See 19 NYCRR 182.9.
In addition, any records retained by a notary public must be capable of being produced to the Secretary of State and others as necessary in relation to the performance of the notary public’s obligations pursuant to the Executive Law. 19 NYCRR 182.9(c).
We have had many conversations with colleagues about the burden that the journal requirement will create for those individuals who notarize a lot of documents, such as title closers in a real estate closing. It will be interesting to see whether anyone challenges the enactment of the law. Stay tuned….we will provide updates here as they occur. In the meantime, if you are a notary, it would be wise to make sure that you maintain the required journal of all notarizations that you perform.
Disclaimer: The information contained in this post is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and communications. Contacting us, however, does not create an attorney-client relationship.