Bulletin: AL2021001

Dear Associates:

On April 29, 2021, Alabama Governor Kay Ivey signed into law SB275 which became ACT #2021-319 (hereinafter referred to as the “Act”). It became effective July 1, 2021. This Act is codified as Section 36-20-73.1 of the Code of Alabama (1975). 

The Act relates to attestations by notaries, past, present, and future, by: 

1. Statutorily authorizing remote notarization for acknowledgements by adding Section 36-20-73.1 to the Code of Alabama (1975) (hereinafter referred to as “Code); and
2. Ratifying the remote notarizations that were authorized pursuant to actions taken pursuant to the Emergency Management Act of 1955 in the form the governor’s emergency proclamation, as amended.

For the purposes of Section 36-20-73.1, there are two definitions that apply in the provisions permitting remote notarization: 

1. Original signature: a signature signed onto a document with wet ink; and
2. Signatory: the person who is named on the document and is to sign the document. 

A requirement that the Act DOES NOT change is the continued requirement for an original signature by the notary on a document. However, a signatory may either appear before the Notary: 

1. Physically; or
2. Through the use of two-way audio-video communication technology that allows a notary public and a remotely located signatory to communicate with each other simultaneously by sight and sound.

In order for a document to be notarized when the signatory is remotely located, however, the notary public must: 

1. Be physically located in the state of Alabama; and
2. Maintain a recording of the two-way audio-visual communication for seven (7) years. 

The Act establishes identity verification requirements for the signatory with which the Notary must comply in order to notarize a document that is being executed by the signatory in a two-way audio-visual environment with the notary. The identity of the signatory is considered verified by the terms of the Act: 

1. If the notary public has personal knowledge of the identity of the signatory; or
2. The signatory produces two valid forms of government issued identification, one of which must include the face and signature of the signatory (e.g., a driver’s license or passport AND a social security card). If relying on government issued identification, the notary must also verify the identity of the signatory through a review of public or private data sources as well.

The content of the two-way audio-video communication is addressed by the Act as well. The recording must contain:

1. The date and time of the remote notarial act;
2. A description of the documents being notarized;
3. An attestation by the Notary that he or she is physically located in the state of Alabama;
4. A description that the Notary has verified the identification of the signatory(ies);
5. A clear image of the government issued identification relied on by the Notary; and
6. A clear image of the party(ies) actually signing the documents to be notarized.

The date documents are acknowledged is the date on which the Notary witnessed the documents being executed by way of the two-way audio-video communication. The documents must then be provided to the Notary by the signatory(ies) for the Notary’s authentication and original signature. 

UNDERWRITING CONDITIONS FOR THE NOTARIAL PROCESS

1. Notary must be an Alabama appointed Notary Public and be physically located in Alabama at the time of the notarial act.
2. Notary and signer via technology platform have face to face interactive (live) exchange of communication.
3. Notary must verify the identification of the signatory(ies) as provided above. Also, the Notary must perform a video comparison of the photo identification to the signatory’s face.
4. Signatory signs on camera for Notary to witness.
5. Signatory then sends, contemporaneously with execution via email or fax, the signed signature page and copy of photo identification to Notary.
6. Notary applies notarial seal to received execution page and date the acknowledgement with the date the Notary actually witnessed the execution of the document.
7. Signer then sends the wet-signature page to Notary to re-apply notarial seal to maintain wet signature in the file or for counties requiring a wet signature for recording.
8. If the Notary is not a member of the agent’s staff, then the Notary must send both non-wet signature with notarial stamp and wet signature with a notarial stamp to the agent within 24 hours along with the photo identification and video of the notarial transaction.
9. Agent who is responsible for recording receives the original document and photo identification and attaches signature page with a notarial seal to original document.
10. The Notary must maintain a notary logbook in which the notarial act by audiovisual means is entered.
11. Parties, including lender, must authorize in writing the use of the video notary process.
12. No change is allowed to the acknowledgment forms outlined in Code of Alabama (1975) Section 35-4-29.

Please note we have a dedicated site on VU for all things COVID-19 related available: https://www.vuwriter.com/en/coronavirus-resources.html.

In the event you have any questions regarding the above please contact Stewart Title Legal Department at 212-922-0050 and speak with any Underwriting Counsel.

If you have any questions relating to this or other bulletins, please contact the Alabama State Office for assistance.

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