On October 29, 2020, Governor Wolf signed into law House Bill 2370, which will permanently permit the use of remote notarization in Pennsylvania. Before the passage of this bill, Pennsylvania did temporarily permit the use of remote notarization during the COVID-19 pandemic.
What is Remote Notarization?
Remote notarization is the notarizing of legal documents while the client is not physically in the presence of the notary by utilizing technology. The client still personally appears before the notary using a Zoom-type program where the notary can see and hear the client. Under prior law, the notary and the client had to be in the same physical location while the client signed the legal document.
The notary must still validate the client is who they say they are by
- using personal knowledge (the notary knows the client)
- relying on an affidavit from a credible witness, or
- by using technology tools designed to confirm the identity of the client. If using this form of validation,, the notary must use two different types of identity proofing. Identity proofing is a service provided by a third party. Typically the program the notary is using to conduct the remote notarization, such as SafeDocs, will have identity proofing integrated into their system.
The notary must be able to identify the record that they will be notarizing and watch the client execute the document. The certificate attached to the notarized document must also state that the notary was completed by “means of communication technology.”
Should I Use a Remote Notary?
Using a remote notary is not without its fair share of problems. Such problems include:
- Lack of personal information available in public or private data sources. If you have no or limited credit history, it is unlikely that you will be able to pass an identity proofing. This will affect younger clients and clients who have no credit cards or mortgages.
- Lack of technology. If the client doesn’t have a device with a camera and microphone, they won’t be able to utilize a remote notary. Also, if the device the client does have is outdated, they might not be able to run the program for the remote notary.
- Lack of internet. The client and notary must both have highspeed internet. This will disadvantage clients who have no or limited access to internet.
- Storage of notary records. A remote notary is required to store the audio-visual recording for at least ten (10) years. This may create significant liability issues for notaries. What happens if their computer crashes or is hacked? Additionally, if storing in the cloud, there will be a cost involved to maintain that record.
- Acceptance by the Recorder of Deeds. The Recorder of Deeds is not required to accept documents notarized remotely for recording. This will create confusion as there are sixty-seven (67) Recorder of Deeds Offices throughout the State. It is likely that each Recorder will come up with their own policy and there will be a lack of consistency across the state.
In this rapidly evolving age of technology adaptations, Russell, Krafft & Gruber LLP is here to answer your technology-related legal questions.
Nichole Baer is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Stetson University, College of Law and practices in several areas, including Business, Commercial Real Estate, Estate Planning, and Estate Administration.