New Remote Online Notarization Requirements in Response to COVID-19

Pennsylvania Law Authorizing Remote Notarization

On April 20, 2020, Governor Wolf signed into law Senate Bill 841, which authorizes remote online notarization, or notarization where the notary and signatory are in different physical locations with the signer’s appearance before the notary being made via audio-visual communication technology. The authorization will remain in place until sixty days after termination of Governor Wolf’s COVID-19 emergency proclamation, which was recently extended to remain in effect until May 8, 2020. Prior to the COVID-19 pandemic, Pennsylvania statute required a notary to be physically present in order to notarize a document, though that requirement was lifted for commercial real estate transaction documents and certain estate documents on March 25 and April 2, respectively.

Before a notary may use audio-visual technology as an alternative to in-person appearance, he or she must first become an approved Pennsylvania remote notary, which can be done by completing an online application. The notary must then register to use one or more remote notarization technology platforms already approved by the Pennsylvania Department of State, a list of which is available on the Department website. The approved software would allow the signer and notary to see and hear one another simultaneously.

In addition, documents being notarized remotely must include in the notary certificate a statement that the notarial act was performed by means of communications technology, which can be satisfied by the following statement: “This notarial act involved the use of communication technology.” Practitioners should thus ensure that this language is added to applicable notary signature pages.

Other States’ Remote Notarization Requirements and Proposed Federal Statute

Twenty-three states already allowed for remote online notarization prior to the COVID-19 pandemic, and many of the states that did not previously permit it have recently loosened their statutory requirements to allow for it. On March 19, New York Governor Andrew Cuomo signed an executive order authorizing remote notarization, which was originally set to expire on April 18 but has been extended to remain in effect until May 7. On April 14, New Jersey Governor Phil Murphy signed Assembly Bill 3903, which authorizes remote online notarization, subject to several exceptions, so long as the governor’s order declaring COVID-19 a public health emergency is in place. The New Jersey bill does not allow for remote notarization of documents governed by wills and estates or family law, or by certain sections of the Uniform Commercial Code. In Delaware, where existing law already conferred notarial power on Delaware-licensed attorneys, an April 15 executive order authorizes remote notarization by Delaware attorneys. The Delaware law will remain in effect even after termination of the state’s COVID-19 emergency declaration.

On March 18, 2020, the US Senate introduced the Securing and Enabling Commerce Using Remote Electronic (SECURE) Notarization Act of 2020 to permit immediate nationwide use of remote online notarization. In its current form, the SECURE Act would authorize every notary in the country to perform remote online notarizations in transactions that occur in or affect interstate commerce.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Adrienne C. Beatty is an associate in the Corporate & Securities Department at Klehr Harrison.