Notarization in a COVID-19 World and in the State of California
Many documents require a notary. Trusts, powers of attorney, loan documents, and deeds are a few examples. But during a global pandemic, how does one safely get documents notarized? This question is being asked a lot lately. Unfortunately, there is a lot of misinformation out there regarding online notarization. And despite what you might have heard or seen, California still requires in-person notarization.
In the midst of the coronavirus and state-wide stay at home orders, companies, estate planners, lenders, and the general public are struggling to close transactions. A big roadblock is the difficulty and potential danger of getting documents notarized. As most know, notarization is the official fraud-deterrent process that assures the parties to a transaction that a document (or at least the signature on the document) is authentic and can be trusted. It is three-part process performed by a notary public, and includes vetting, certifying and record-keeping. In California, it requires an in-person meeting and close contact.
Currently, California law does not provide the authority for California notaries to perform a remote online notarization (RON). The personal appearance of the document signer is required before the notary public. Notaries in California are considered essential workers, and in-person notarization is still possible during the current state-wide stay at home order.
As of the end of March, 23 states have enacted RON laws, and 17 are currently in effect. In some states, RON services are currently permitted by an emergency guidance or executive order. In early April a coalition of trade associations led by the California Land Title Association sent a letter to Governor Newsom requesting the issuance of an executive order expressly providing or affirming that California law recognizes the validity of documents legally remotely notarized outside the state.
The letter notes that, by allowing Californians to utilize RON services, real estate transactions and projects such as refinances and home construction could be completed in compliance with state and county shelter-in-place orders. The letter also points out that the order would codify written guidance recently issued by the California Secretary of State in communications to the National Notary Association.
In addition to the current push to have Governor Newsom issue an emergency guidance or executive order, in January of 2019, well before the uncertainly and disruption caused by the coronavirus pandemic, AB-199 was introduced. AB-199, also known as the California Online Notary Act of 2019, would have authorized remote online notarization in California by permitting an online notary to conduct a notarial act using secure two-way interactive audio and video communication. If enacted, the online notary must be approved by the Secretary of State after undergoing specialized training and testing. The Secretary of State would be directed to draft regulations to implement the law and develop data and technology-neutral standards. Additionally, this technology will require the signer’s presentation of a photo ID, credential analysis, and identity proofing. Unfortunately, AB-199 is currently a dead bill, and as of February of 2020 the bill was filed with the Chief Clerk and is awaiting further action.
So, what is the best practice without RON services in California?
- First, don’t be fooled by notaries offering online or skype notarization. California notaries are not authorized to offer RON services of any type. Further, out-of-state notaries performing RON services for California persons or documents governed by California law are not currently legally recognized as a valid notarization.
- We recommend utilizing the services of a mobile or in-house notary who is practicing and utilizing social distancing as much as possible, uses single use pens, and wears gloves and a mask. Further, we recommend that you ask questions before making an appointment with a notary to ensure that all the necessary and reasonable precautions will be performed.
- For a single document, we also recommend that you use the services of a local in-house notary at a bank or mail and packaging business, like a UPS Store or a Mailboxes, Etc. These business are already open, considered essential and generally have social distancing measure in place.
- Finally, bring your own pen, wear a mask and gloves and do not have documents notarized if you or anyone in your home are showing the symptoms of illness.
Last but not least, be safe and stay well.