Bulletin: NY000684

Dear Associates:

Effective January 31, 2023, new regulations that will come into effect that will augment the notarial process in New York. The complete regulations are set forth in 19 NYCRR, Chapter V, Subchapter E, Part 182.2 – 182.11.  It is strongly recommended that all notaries familiarize themselves with these new regulations as it affects both traditional “in person” notarization and remote online notarization (“RON”). The New York State Department of State (“NYSDOS”) will administer the new regulations; some of the regulations regarding traditional “in-person” notarization, the highlight of which is the requirement that a notary maintain a journal, was discussed in STIC Bulletin NY000683. That portion of the regulations took effect January 25, 2023. This was the first major change, the second being that New York is now accepting of RON.

The use of remote ink notarization (“RIN”) in NY will be prohibited after January 31, 2023. Simply stated a RIN transaction occurs when the signer and notary are in differing locations (the notary always had to be located in NY) and the signer executes documents with a traditional “wet signature” while the notary witnesses the execution over live, real-time video. The actual signatures were “ink on paper” and were not electronic.

As set forth above, RON is now going to be officially implemented in New York. Section 182.4 is the section pertaining to RON notaries. Amongst the requirements:

All notaries public who wish to perform electronic notarial acts in New York State must:

1.     register the capability to notarize electronically with the secretary of state in compliance with this Part; (You must be a notary public to be an electronic notary, although you must register on the     NYSDOS website if you wish to perform electronic notarial acts.)

2.     use only those vendors or providers who comply with the standards outlined in this Part and any communication or reporting relating to those standards as required by the secretary of state;

a.     Note: NYS does not “approve” or certify platforms. Per the NYSDOS, notaries are required to select platforms that comply with minimum standards. Notaries should obtain        confirmation that any platform used complies with the NYS requirements and the platform provider is required by New York’s General Business Law to comply with those standards if they’re operating in the NY marketplace or if they’re representing to commissioned notaries that such platform complies.

3.      be physically located within the boundaries of New York when performing electronic notarial acts;

The notary must always be located in NYS but the person using the services can be any place provided that if the person is not in the US, the following additional rule applies:

If the principal is located outside of the United States, the notary must verify, through verbal confirmation made by the signer in the course of the recorded electronic notarial act, that the record or subject of the notarial act:

 1.     is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or

 2.     involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States;

If an electronic notarization is done remotely, the jurat must expressly state that the person making the acknowledgement or making the oath appeared through use of communication technology.

Logistically, for RON, the notary must be able to see and interact, in real-time, with the remote signer of the document through audio-visual communication technology.  Regardless of the location of the signer, whether in or out of the United States, this technology must have security protocols in place to prevent unauthorized access. 

For any individual who appears before an electronic notary public using communication technology, and who is not personally known to the notary public, satisfactory evidence of identity requires all of the following:

1.     identity verification;

2.     credential analysis; and

3.     identity proofing

Identity verification is a process that compares the identity that a person claims to have with the supporting data they possess. Credential analysis is the process by which a principal's government-issued identification card is validated. The process requires a third party to use technology to confirm the security features on an ID and confirm the ID is not fraudulent. Identity proofing is a process or service through which a third party confirms the identity of a signer through review of personal information from public and proprietary data sources.

The notary must make and keep an audio-visual recording of the electronic notarization and ensure that there is a back-up of the recording. This recording must be kept for a minimum of 10 years. The recording is part of the electronic notary journal that must be maintained by the notary as defined below.

“Electronic” notary journal must include:

1.     the date, approximate time, and type of notarial acts performed

2.     the name and address of any individuals for whom a notarial act was performed

3.     the number and type of notarial services provided

4.     the type of credential used to identify the principal, including, for verification made where a notary relies on the oath or affirmation of two witnesses who identify themselves with a valid government issued ID and who know the document signer personally, the names of the witnesses and, if applicable, the type of credential used;

5.     the verification procedures used for any personal appearance before the notary public;

6.     for electronic notarial acts, identification of the communication technology, certification authority, and verification providers used; and

7.     an actual audio/video recording of the act.

After the signer has executed the document, it must be transmitted to the notary public for notarization.  This is done by presentation to the notary of the executed document through the software platform. The notary must confirm that the document is the same as the one signed electronically in the notary public’s presence before applying the notary stamp and signature to the document.  For electronic notarial acts performed remotely, the following statement must be added to the jurat “This electronic notarial act involved a remote online appearance involving the use of communication technology.” The county clerks must accept documents for recording provided they contain a certificate of authenticity.

The notary must safeguard their access information that they use to affix the electronic notary’s signature and seal except when requested by the secretary of state or a designee, or judicial subpoena, and with reasonable precautions, electronic document preparation and transmission vendors. Control of security aspects such as but not limited to passwords, token devices, biometrics, PINS, phrases, software on protected hardware shall remain under the sole control of the notary public.

A notary can refuse to perform a notarial act when the notary is not satisfied that the presented documentation evidences the individual’s capacity to complete the notarization.

Please check with all parties, particularly lenders, if a closing can be conducted via RON.

A list of RON providers Stewart recommends may be found here: https://www.virtualunderwriter.com/en/ron.html

Please visit the NYSDOS website for additional information: https://dos.ny.gov/notary-public#remote-notarization-faqs

In the event you have any questions, kindly contact Stewart Title Legal Services for guidance at 212-922-0050.

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

Attachments:  RON-Notice of Adoption