Bulletin: FL2020002

Dear Associates:

This Bulletin provides Stewart’s guidelines for the insurability of instruments where one or more recorded documents are to be, or have been, acknowledged or sworn before a notary utilizing remote online notarization. This Bulletin should be read and followed in conjunction with Bulletin SLS2020003.

Background:

The 2019 Florida Legislature authorized online remote notarization effective January 1, 2020. The Secretary of State (“SOS”) issued regulations, the application and bond forms necessary for the registration of Florida Notaries to become an “Online Notary Public” authorized to perform remote online notarizations.

What is a remote online notarization (“RON”)?

RON is a process whereby a signer and an online notary public use interactive two-way audio and video communication technology, as defined in s. 117.201 (“AVCT”) to notarize the signer’s electronic signature on electronic documents. Personal appearance requirements are met because a signer appears before the notary taking the acknowledgment via secure interactive internet-based two-way audio-video communication technology where the participants are able to see, hear and communicate with each other.

Can a currently licensed Florida Notary perform online notarizations?

No, unless the Florida Notary is registered with the SOS as an Online Notary Public. In order to become registered a Florida Notary must submit to the SOS:

• Completed application form;
• Payment of the required fees;
• Identify the RON Service Provider to be used;
• Obtain and provide proof of a RON Surety Bond and E&O coverage for online notarizations; and
• Completion of a 2-hour SOS approved class.

The SOS will review and then issue approval.

Can a Florida Online Notary Public notarize execution of a document for a person who is not located in Florida, but is located within the U.S. or a U.S. Territory?

Yes, provided you comply with SLS2020003 and this bulletin. You may use your Florida electronic seal and electronic signature on the document, although care should be taken to ensure the form of the jurat or acknowledgment conforms to Florida requirements. See F.S. 117.05, 117.265(7) and 695.25, where applicable. Sample forms are found in FL2019004.

Can a Florida Online Notary Public notarize execution of a document for a US Citizen while located outside of the U.S. or U.S. Territory?

Yes. the signer must be a US Citizen and undergo identity proofing. Please note that where documents are to be witnessed, witnesses appearing remotely must be US residents located in the US and will need to undergo identity proofing. See Fla. Stat. 117.285(4).

Can a Florida Online Notary Public notarize execution of a document for a Non-US Citizen located outside of the U.S. or U.S. Territory?

Not generally. STGC Underwriter approval is required if your transaction involves a non-US citizen using an ID not issued by the US/Domestic State Government. Currently, STGC approved vendor platforms are unable to perform credential analysis and knowledge-based authentication unless the signer has a US issued identification, a social security number and at least one year of credit history upon which to base Knowledge Based Authentication (“KBA”). There may be limited circumstances where the necessary requirements for RON could be performed/met for a non-US citizen.

Can witnesses appear remotely?

Yes, witnesses can appear remotely, although different rules apply depending on whether the notarization is completed by a Florida Online Notary Public or a notary licensed/certified in another state.

1.) Where the remote notarization is completed by a Florida Online Notary Public, and the witnesses are remote from the principal the witnesses must be US residents physically located in the US and identity proofing must be performed upon the witness unless the witness is personally known to the notary. The Notary may act as one of the witnesses. In addition, under FS 689.01, where the witness is remote from the principal, the witness must appear and electronically sign by means of AVCT and the recording must reflect the witness hears the principal make a statement acknowledging the principal has signed the electronic record. Prior to notarization of a document utilizing witnesses remote to the signer, you should inquire of your service provider to determine if your vendor is able to perform identity proofing for multiple parties in a single session.

2.) Where the remote notarization is completed by an out of state notary, they must comply with any laws of the state in which they are licensed/certified and in addition, compliance with FS 689.01 is required as follows: a witness in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes his or her electronic signature must appear by AVCT; must electronically sign the document within the area tagged for witness signatures; and the recording must reflect the witness hears the principal make a statement acknowledging the principal has signed the electronic record.

Can an online Notary acknowledge deeds and mortgages for use on commercial properties?

No, at present Stewart will only accept use of RON for transactions involving residential properties.

Can an online notary licensed in another State and not licensed in Florida as a Online Notary Public perform online notarizations on Florida property?

Yes, provided both you and the online notary comply with SLS2020003 and this Bulletin. Care should be exercised to ensure the service provider completes the identity proofing required under STGC guidelines, the agent retains copies of the ID presented, the agent retains a copy of the digital certificate and all required consents are obtained.

Does Florida have identity and credential analysis standards?

Yes. Unless the signer is personally known to the Florida Online Notary Public, satisfactory evidence of the identity of the signer must be presented. Florida law requires:

1.) Satisfactory evidence in the form of government issued identification which must be presented to the online notary for review;

2.) the presented identification must pass credential analysis performed by the RON Service Provider, and

3.) the signer must successfully pass identity proofing, ordinarily done through KBA.

Does Stewart have preferred vendors?

As stated in SLS2020003, Notarize, NotaryCam, Pavaso and Nexsys have been approved as technology providers of web-based technology. However, you will need to confirm all Stewart guidelines as well as all requirements of Florida Law are met by the selected vendor.

Can the parties refuse to use Online Notary Services?

Yes, in fact not only does the lender have to approve and all parties consent to use of e-signatures and online notarization, you must obtain a separate electronic written consent from all parties to the transaction prior to execution of documents electronically; including the seller, buyer/borrower, and lender, in compliance with state and federal law. In addition, specific consent for the recording of the AVCT session must be obtained as Florida Law requires the uninterrupted audio/video session be recorded.

Are there limitations on what documents may be remotely notarized by a Florida Online Notary?

Yes, online notaries are forbidden from notarizing any documents a traditional notary could not notarize, for example a document where the notary has a financial interest. An online notary may not solemnize a marriage. There are also specific rules related to the online notarization of wills, powers of attorney, trusts with testamentary aspects, health care advance directives and waivers of spousal rights under FS 732.701.

This Bulletin is not intended to direct your closing practices or to change the provisions of our underwriting agreements. Escrow and settlement services are outside the scope of our agency contract. You must seek the advice of your own legal counsel in making all decisions pertaining to escrow and closing matters under state and federal law. As a reminder, all independent agencies must have all necessary licenses for escrow, closing, and title as required by state law and a valid underwriting agreement with the Company in each state where the Issuing Office is doing business.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

For on-line viewing of this and other bulletins, please log onto www.vuwriter.com.