The renewable energy industry is growing rapidly but it faces several challenges, including ever-increasing competition amongst developers for rights to the same land. This creates a race between developers to encumber project land.
Negotiating and executing a lease is normally more time-consuming than recording it, but recording the lease agreement (or other applicable real estate instrument) is not a step that should be overlooked or delayed. A lease is effectively meaningless to anyone not a party to it until it has been recorded in the public records of the county in which the leased property is located. Once the lease, or evidence of the lease, has been recorded, everyone not a party to it is put on notice and any agreement encumbering the leased land after that date is typically subordinate to the lease.
Although the process for recording leases varies by county, recording instruments must nearly always be notarized. This used to mean that signatories had to meet with public notaries face-to-face to authenticate their identity and certify legal documents. This proved difficult during the COVID-19 pandemic. Fortunately, many states recognized the importance of keeping the notarization process moving and responded by passing laws allowing for remote notarization.
A remote notary allows signatories to verify their identities and sign documents digitally, without needing to be physically present with a notary public. This can be particularly beneficial to renewable energy projects, which are often located in rural areas (where public notaries may be few and far between).
The following states currently or will soon allow remote notarization: Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware (eff. August 1, 2023), Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine (eff. July 1, 2023), Maryland, Massachusetts (eff. January 1, 2024), Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington D.C., West Virginia, Wisconsin, and Wyoming.
For the minority of states that do not allow remote notarization, the Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act of 2023 may establish a federal code of standards for interstate electronic and remote notary acts to be carried out. The yet-to-be-passed bill would allow notaries public to perform remote online notarization in interstate commerce, as well as allow some signatories located outside of the U.S. to securely notarize documents.
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