Indiana and Tennessee have now joined Virginia, Montana, Texas and Nevada in adopting laws to allow notaries in these states to perform online notarization for real property transactions. Both laws will make real estate closings easier, faster and more convenient for the parties who may actually be in different location across these states or the country. Both laws protect the integrity and the security of documents by involving a notary public located in the state at the time of the notarial services preserving notarial jobs. These laws also require electronic identity protection which will secure transactions for homeowners and commercial transactions in these states. Here is a synopsis of both laws.
Governor Holcomb signed Senate Bill 372 into law on March 13, 2018. Indiana notaries public will be authorized to perform remote notarizations after July 1, 2019. The legislation requires the secretary of state to adopt rules and regulations related to electronic notarial acts and remote notarial acts. Indiana’s legislation also requires the following:
- Notary must first be a commissioned Indiana Notary Public.
- Notaries must complete a separate registration with SOS and pay an additional fee amount of $5.
- Certification of and record keeping related to remote notarial acts
- Use of audio visual communication and recording
- Verification of credentials
- Maintenance of records
- Notary must be physically located in Indiana to perform RON services.
- An additional education component to become a remote notary public.
The Secretary of State’s office will approve technology vendors, who meet state law requirements. A registered remote notary public can then select a vendor from this list in order to provide these services. The passage of this law involved the combined efforts of the ILTA, the Indiana State Bar Association, Indiana Banker’s Association, Indiana Mortgage Bankers Association, Indiana Association of Realtors and interested vendors led to the legislation.
On April 18, 2018, the Tennessee legislature passed SB1758/HB1794 authorizing electronic acknowledgments and online notarizations for certain transactions. It has been sent to the Governor for signature. Currently, a signer must physically appear before a notary. After July 1, 2019, a person may “appear” by an interactive two-way audio and video communication that meets the online notarization requirements. The Tennessee legislation also requires an additional application and fee filed with the Tennessee Secretary of State to be commissioned as an online notary public. The Tennessee Secretary of State is also required to adopt rules and regulations related to remote online notarial acts. The online electronic notarization relates to:
- A document involving real estate located in Tennessee;
- An acknowledgment or affirmation made by a person located in Tennessee.
- An agreement performable wholly or partly in Tennessee;
- An agreement or document creating a debt that is payable at a location in Tennessee;
- An agreement that specifically requires the application of the laws of Tennessee;
- A document, including an affidavit, that is intended to be filed or used in a court located in Tennessee.
This Act also requires an online notary public to:
- A commissioned Tennessee Notary Public physically located in Tennessee at the time of the notarial service;
- Reasonable steps to ensure the integrity, security, and authenticity of online notarizations;
- Reasonable steps to maintain and protect a backup for the electronic record from unauthorized use;
- Keep the electronic record, electronic signature, and electronic seal secure and under the online notary public’s exclusive control;
- Attach the online notary public’s electronic signature and electronic seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification (verification of credentials) and renders any subsequent change or modification to the electronic document evident (tamper-seal);
- Retain records related to remote notarial acts for at least five years after the date of the transaction or proceeding.
- Amend the acknowledgment form to read “remotely appeared” or “remotely appeared before me,” rather than “personally appeared” or “appeared before me” for online notary.
Other states still considering RON legislation (2018-2019 sessions) include: Colorado, Florida Pennsylvania, Minnesota, Oklahoma, Wisconsin, Utah, South Dakota, Nebraska, California, Louisiana, Kentucky, Michigan, Ohio and D.C. States considering eNotarization legislation include: New Hampshire, Georgia, Maryland and Arizona.