McCarter & English, LLP

On April 14, 2020, New Jersey Governor Phil Murphy signed into law a bill that allows a notary public or other officer authorized to take oaths, affirmations, affidavits and acknowledgments in the State of New Jersey (e.g., county clerks and attorneys-at-law licensed in the State of New Jersey) to perform notarial acts (i.e., taking acknowledgments or notarizing documents, administering oaths and affirmations, etc.) remotely. The law, which took effect immediately and remains in effect for the duration of the current state of emergency declared by the Governor to mitigate the spread of COVID-19, allows for notarizations using audiovisual technology whereby the notary public or notarial officer is able to communicate live with an individual despite not being in the physical presence of that person.

Notarizations are traditionally done in person; however, the statewide stay-at-home order and social distancing mandate have curtailed in-person notarizations, prompting New Jersey to join other states in enacting laws temporarily authorizing the use of remote electronic notarization (“e-notarization”). New Jersey joins 43 other states that through either an existing law or emergency action permit notarizations even though the notary and signatory are in different geographical locations. Neighboring states like New York, Pennsylvania and Connecticut have taken similar emergency short-term measures to relax in-person requirements, though through executive orders. Given that notarization is a key part of the transactional process (e.g., under New Jersey law, mortgages and deeds must be properly notarized to be recorded and powers of attorney must be properly notarized to become legally binding), this legislation will facilitate the continuation of business transactions during the pandemic.

The new law allows the notary public or notarial officer to perform notarial acts using “communication technology,” which is defined as an electronic device that allows the notary public or notarial officer and the remotely located individual to simultaneously see and hear each other. The National Association of Secretaries of State (“NASS”), which has promulgated national e-notarization standards, has acknowledged that webcams are being used in states that have enacted similar laws, and presumably, laptops and cellphones with built-in cameras having similar functions will also suffice.

A notary public or notarial officer will be allowed to perform notarial acts remotely using audiovisual technology if (a) the notary public or notarial officer has authenticated the identity of the remotely located individual, which can be established if (i) the remotely located individual is personally known to the notary public or notarial officer, (ii) a credible witness known to the notary public or notarial officer swears to the identity of the remotely located individual or (iii) the remotely located individual provides at least two forms of ID (e.g., driver’s license, passport, government-issued non-driver identification card); (b) the notary public or notarial officer is reasonably able to confirm that the document before the notary public or notarial officer is the same document in which the remotely located individual made a statement or on which such individual signed; and (c) the notary public or notarial officer, or other person acting on their behalf, creates an audiovisual recording of the notarization, which recording must be retained for a period of at least 10 years by the notary public, notarial officer, or agent or personal representative of such notary public or notarial officer. In addition, if the notarial act is performed remotely, the certificate and name affixation required by the notary public or notarial officer must indicate that the notarization was performed by means of audiovisual communication.

For a remotely located individual located outside the United States, the new law requires that (a) the document (i) is to be filed with or relates to a matter before a public official or court, governmental entity or other entity subject to U.S. jurisdiction, (ii) involves property located in the territorial jurisdiction of the U.S. or (iii) involves a transaction substantially connected with the U.S., and (b) the act of making the statement or signing the document not be prohibited by the foreign state in which the remotely located individual is located.

The new law authorizes the State Treasurer to adopt rules as necessary to implement provisions of the law, taking into consideration the most recent standards regarding e-notarization promulgated by national standard-setting organizations, such as the Mortgage Industry Standards Maintenance Organization, and the recommendations of NASS. Given that the law is newly enacted, the State Treasurer has not yet adopted any such rules; however, the national e-notarization standards issued by NASS in February 2018 will serve as a likely guidepost. For example, New Jersey has not specified whether the notary public or notarial officer performing the electronic notarial act by audiovisual communication should be present within the state of New Jersey at the time that the e-notarization is performed; however, the NASS standards recommend that the notary be present within the state in which the notary is authorized to perform notarial acts at the time the notarial act occurs.

While e-notarization may be used in most circumstances during the present state of emergency, it is not authorized with respect to the execution of (a) documents related to adoption, divorce and other family law matters or (b) documents that are governed by the Uniform Commercial Code (UCC), excluding sales and leasing transactions that fall under Chapters 2 and 2A, and sections 1-107 (section captions) and 1-206 (presumptions), of the UCC.

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