Pennsylvania Enacts Law Permanently Authorizing Remote Online Notarizations
- Pennsylvania Gov. Tom Wolf has signed into law House Bill No. 2370 (Act 97), permanently authorizing Pennsylvania notaries to conduct remote online notarizations (RONs) – notarizations conducted by a notary with an individual who is not in the same location as the notary (a "remotely located individual"). Act 97 states that it is effective immediately.
- Notaries can begin to conduct RONs once they notify the Pennsylvania Department of State (DOS) of their intention to do so and identify the communication technology that they intend to use (which must conform to any standards that the DOS may establish).
- The Mortgage Bankers Association (MBA) of Greater Philadelphia, the MBA of Southwestern Pennsylvania and Holland & Knight will host "Remote Online Notarizations in Pennsylvania" on Nov. 18, 2020, a free industry webinar that will examine the requirements of Act 97 as well as how the new law can provide easier, cheaper and more efficient closings.
Pennsylvania Gov. Tom Wolf signed into law House Bill No. 2370 (Act 97) on Oct. 29, 2020, permanently and immediately authorizing Pennsylvania notaries to conduct remote online notarizations (RONs) – notarizations conducted by a notary with an individual who is not in the same location as the notary (a "remotely located individual"). It joins at least 27 other states that already have such laws on the books. For more information concerning RONs, the movement by state legislatures around the country to permanently and/or temporarily authorize RONs, and how RONs can help businesses during the current health crisis and beyond, see Holland & Knight's previous alerts, "Remote Online Notarization: A Critical Tool to Ensure Business Continuity During COVID-19," March 17, 2020, and "Remote Online Notarization: More States, Including New Jersey, Join the Crowd," April 17, 2020.
Highlights of the New Law
Briefly, Act 97 effectively permits a remotely located individual to "personally appear" before the notary by means of communication technology. It defines "communication technology" as "[a]n electronic device or process that: (1) allows a notary public located in [Pennsylvania] and a remotely located individual to communicate with each other simultaneously by sight and sound; and (2) makes reasonable accommodations for an individual with a vision, hearing or speech impairment in accordance with law." The remotely located individual can be at a location inside or outside Pennsylvania, or even in a foreign country, but the notary must be in Pennsylvania.
To properly conduct a RON under Act 97, a notary must:
- have personal knowledge of the identity of the remotely located individual, have satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary, or be able to reasonably identify the remotely located individual by at least two different types of "identity proofing" processes or services (as defined below)
- be able to reasonably identify a record before him/her as the same record 1) in which the remotely located individual made the statement, or 2) on which the remotely located individual executed his or her signature, and
- create, or have created by a third party on his/her behalf, an audiovisual recording of the performance of the notarial act, including all interactions between the notary and the remotely located individual
Additional requirements apply if the remotely located individual is located in a foreign country.
"Identity proofing" is a process or service by which a third person provides a notary with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources. There are several different types of identity proofing processes in use in the United States, including credential analysis (whereby a photograph is taken of the remotely located individual's government issued credential, such as a driver's license or passport, and analyzed for validity), dynamic knowledge-based authentication (whereby the remotely located individual must correctly answer, within a short period of time, a certain number of dynamic questions with answers that only the specific individual could be expected to know), biometrics and other means of identification.
Each notarial certificate executed by a notary in connection with a RON must indicate that the notarial act was performed by means of communication technology. The audiovisual recording of each RON must be retained, again either by the notary or a third party on his/her behalf, for at least 10 years after its creation or some other period established by the Pennsylvania Department of State (DOS) by regulation.
Act 97 also authorizes 1) notaries to certify that a tangible copy of an electronic record is a true and correct copy of the electronic record, and 2) recorders of deeds to accept for recording a tangible copy of an electronic record that is so certified by the notary.
Notaries can begin to conduct RONs once they notify the DOS of their intention to do so and identify the communication technology that they intend to use (which must conform to any standards that the DOS may establish). Act 97 also requires the DOS to adopt regulations prescribing the means of performing a RON, establishing standards for communication technology and identity proofing as well as for approving providers of communication technology and the process of identity proofing, and establishing standards and periods for retention of the audiovisual recordings of RONs.
Authors Leonard Bernstein and Bob Jaworski will be among the presenters for "Remote Online Notarizations in Pennsylvania," a free industry webinar that will be held on Nov. 18, 2020, and is hosted by the Mortgage Bankers Association (MBA) of Greater Philadelphia, the MBA of Southwestern Pennsylvania and Holland & Knight. Anyone who is involved in or has a stake in the closing and delivery of loans can register online to attend the webinar, which will examine the requirements of Act 97 as well as how the new law can provide easier, cheaper and more efficient closings for you and your customers.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.