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North Carolina establishes permanent remote online notarization

Last week, Governor Cooper signed House Bill 776 which permanently codifies remote online notarization and restores emergency video notarization. Remote Online Notarization (“RON”) will take effect July 1, 2023, and Emergency Video Notarization (“EVN”) will take effect immediately.

Electronic notarization has been available in North Carolina since 2005 under the Electronic Notary Act. Under this law, regular notaries who meet the training and testing requirements of GS 10B-107 can register with the office of the NC Secretary of State as “electronic notaries.” Electronic notaries have the ability to perform certain notarial acts electronically; however, electronic notarization requires that the signer of the document be in the physical presence of the notary.

The physical presence requirement became problematic at the height of the COVID-19 pandemic. North Carolina enacted a temporary EVN law in 2020 to allow all notaries (including regular notaries and electronic notaries) to perform acknowledgments and oaths/affirmations via videoconferencing technology. EVN expired on December 31, 2021; however, Bill 776 restored the EVN so that it could resume, with immediate effect, and ratify any EVN that occurred after December 31, 2021 and before July 8, 2022.

Additionally, House Bill 776 adds a new category of notary – the remote electronic notary. A remote e-notary can perform any of the notarial acts that an e-notary can perform (e.g. acknowledgements, swears, verifications or proofs, and oaths or affirmations), but does not need to be in the presence physique of the signatory. RONs can only be performed using secure remote communication technology platforms capable of logging and geolocation, and authorized by the NC Secretary of State.

Until the permanent RON becomes effective, EVN will continue to be available. House Bill 776 makes some changes to the EVN Act (codified as GS 10B-25) but mostly leaves the rules enacted in 2020 unchanged. To summarize the EVN law:

  • Allows any North Carolina notary to notarize a document using video conferencing for a signer located in any North Carolina county.

  • As long as both parties are physically present in North Carolina, the “personal presence” requirement is satisfied.

  • “Videoconferencing technology” includes electronic communication that (i) is capable of recording, and (ii) occurs in real time such that the signer and the notary can see and hear each other clearly.

  • The notary must (i) know the signatory personally, (ii) know a credible witness who also knows the signatory, (iii) or obtain satisfactory proof of the identity of the signatory by consulting an identity card.

  • Identification cards presented by the signer must (i) include the signer’s physical description and signature, (ii) be issued by a state, federal, or tribal agency, (iii) contain a photograph of the person’s face , and (iv) be current.

  • In addition to producing identification, the signer must (i) identify the county they are in, (ii) verbally state the type of document to be signed, (iii) present the document to the camera for the notary to review , and (iv) clearly show themselves signing the document.

  • Notaries are required to keep a log of each EVN in a safe place for at least 10 years.

When effective, RON will differ from EVN in several notable ways:

  • RON is not permitted for self-proven wills, revocable or irrevocable trusts, death beneficiary acknowledgment forms, codicils, any document related to the waiver of parental rights, or mail-in ballots.

  • The remote electronic notary is required to record the remote electronic notarization session and verify the location of the signatory by geolocation.

  • Identity cards must include either the physical description or the signature of the signatory, in addition to other requirements. The notary may refuse to proceed if the identification presented does not meet the requirements.

EVN will remain in effect until June 30, 2023. Once the temporary EVN law expires, regular notaries will again require an in-person appearance for any notarization; however, under RON, electronic notaries will continue to be able to perform electronic and remote notarization. It is unclear whether notaries who are currently registered with the NC SOS as e-notaries will need to re-register as e-notaries remotely.

The Communications Technology Platforms License and other specific rules related to the RON are being developed by the NC Secretary of State and will be available prior to the July 2023 effective date.

The new law also immediately updates the fees that notaries can charge. For recognitions, jurats, verifications or proofs, the fees have increased from $5 to $10 per main signature. For oaths or affirmations without a signature, the fee has also increased from $5 to $10 per person, except for an oath or affirmation made to a credible witness to vouch for the identity of a principal or witness. The electronic notarization fee is $15 and the remote notarization fee will be $25 when the RON comes into force in July 2023

Copyright © 2022 Womble Bond Dickinson (US) LLP All rights reserved.National Law Review, Volume XII, Number 195