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Client Alert: Remote Notarizations Lift Barriers for Shut-In DMV Residents

On Monday, March 30, 2020, Maryland Governor Larry Hogan issued a series of executive orders in response to the COVID-19 crisis, including an order temporarily authorizing the use of remote notarizations throughout the state (Executive Order No. 20-03-30-04), thus allowing Maryland residents to obtain essential notary services without having to leave their homes.  Subject to guidance issued by Maryland Secretary of State, Governor Hogan’s order temporarily waives the in-person requirement for notarizing documents in Maryland for the duration of the COVID-19 state of emergency.
 
Maryland Temporary Remote Notary Guidelines
 
During the continued state of emergency, Maryland residents need not be in the physical presence of a notary public to obtain necessary notary services. 
 
Per Governor Hogan’s executive order, Maryland residents will be able to receive remote notary services if 1) an individual seeking notary services and a Maryland notary public can coordinate communicating with one other simultaneously through the use of “communication technology”; and 2) the notary public providing services a) is appointed and commissioned to perform a notarial act by the State of Maryland; b) has notified the Maryland Secretary of State of his or her intention to perform notarial acts remotely and the communication technology intended to be used; c) creates and retains an audio-visual recording of the performance of the notarial act; and d) indicates on a certificate of the notarial act, and in a journal, that the notarial act was performed remotely using a communication technology.  All other requirements for performing notarial acts as provided under Maryland law will remain in full force and effect.  See Handbook for Maryland Notaries Public for the existing laws and regulations regarding Maryland notaries.
 
Before performing any remote notary services, advance notification must be provided to the Maryland Secretary of State.  Such notification must indicate the intention to provide remote notarial acts, and the communication technology vendor intended to be used.
 
“Communication technology” as defined in Governor Hogan’s order means any “electronic device or process that enables the notary public [to] visually, in real time, view the individual; and compare for consistency the information and photos on identification credentials.”  Furthermore, proper “communication technology” must be designed for the purpose of facilitating remote notarizations, as opposed to electronic services or devices that may be used primarily for video-conferencing ability, such as Skype or Facetime.
 
As a means of helpful guidance only, the Secretary of State has provided a non-exhaustive list of vendors that may meet the requirements of providing communication technology for remote notary services as per Governor Hogan’s order.
 
For individuals seeking remote notary services, having a computer, tablet or other electronic device with audio and video capabilities, as well as an internet connection, may be sufficient technology to comply with Governor Hogan’s executive order, however it will be the responsibility of the remote notary public to ensure proper compliance with the order.
 
Virginia Leading the Way in Remote Notarizations
 
In 2012, Virginia became the first state to authorize remote electronic notarizations performed using electronic audio and visual conference technology.  Virginia permits the following types of notarial acts to be performed electronically: 1) taking acknowledgments; 2) administering oaths and affirmations (e.g., jurats); 3) certifying affidavits or depositions; 4) certifying “true copies” of documents; and 5) performing verifications of fact.
 
To become an electronic notary in Virginia, an applicant must already be a commissioned Virginia notary public, and he or she must acquire an electronic signature and seal from an electronic notary seal provider.  Once a proper electronic signature and seal have been obtained, an applicant must electronically submit a registration form with the Secretary of the Commonwealth by way of an Electronic Notary Application.  On the application, the applicant is required to provide “a general description of the technology[ies] the applicant will use . . . in performing official acts as an Electronic Notary.”  See VA Code §47.1-7.  While there is no additional training required to serve as an electronic notary in Virginia, all other standards applicable to traditional Virginia notary publics continue to apply to electronic notaries, including maintaining a register of each notarial act performed.  For additional information on all current rules and regulations pertaining to Virginia notaries, both electronic and traditional, please see the Handbook for Virginia Notaries Public.
 
The physical process of providing remote electronic notarizations in Virginia is largely the same as the traditional process.  Remote notarization in Virginia requires two-way live teleconferencing by video and audio feed in which the persons communicating must simultaneously see and speak to one another in real time.  Electronic notaries may affix an electronic notary signature and seal to an electronic document (such as a PDF or Word document).  Once the notary’s electronic signature and seal are affixed to the electronic document, the document is rendered “tamper evident” such that unauthorized attempts to alter the document will be evident to relying parties.  Electronic notaries in Virginia are required to keep an electronic record of each electronic notarial act performed for a period of at least five years from the date the notarial act was performed and record such act in the notary’s electronic register.  See generally VA Code §47.1-14.
 
While the Secretary of the Commonwealth does not directly endorse any particular tamper-evident technology or commercial digital signature provider, a helpful list of some applicable providers has been provided, along with answers to additional questions regarding the form and function of electronic notarizations in Virginia.
 
Electronic Notaries Regulations in DC
 
In 2018, the District of Columbia (“DC”) adopted the Uniform Law Commission’s Revised Uniform Law on Notarial Acts Act (“Notarial Acts Act”) which set forth statutory requirements for those seeking to provide electronic notarizations to DC residents.  Pursuant to the Notarial Acts Act individuals presently holding notary commissions must apply to the Mayor of DC for an endorsement to serve as an electronic notary.  Upon receiving the endorsement from the Mayor, applicants must 1) complete a training course, 2) take the oath prescribed for civil officers in the District of Columbia, 3) identify the qualifying technology intended to be used to provide electronic notarizations; and 4) file an exemplar of the electronic notary's electronic signature and official seal.
 
DC residents seeking electronic notary services must also ensure that their electronic devices possess the audio, video and internet capabilities necessary converse with a DC electronic notary, however properly coordinating the administration of notary services will ultimately be the responsibility of the DC notary.  For additional information regarding the rules and regulations of DC notaries, please see the Handbook for DC Notary Commissions and Authentications.
 
Moving Forward Amidst COVID-19
 
Despite the “stay at home” orders currently in place for all residents of Maryland, DC and Virginia, access to notarial services no longer has to be delayed.  With Maryland Governor Larry Hogan’s March 30th executive order in place, Maryland residents, like those in DC and Virginia, will still be able to execute and finalize important legal documents, including but not limited to, estate plans, real estate transfers, various business transactions and contractual agreements.
 
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The attorneys at Whiteford, Taylor & Preston, LLP are happy to answer any questions that residents of Maryland, DC and Virginia may have about the applicability of remote electronic notarizations in their area.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.