DocuSign: Are remote online notarizations recognized in all states?
States are increasingly allowing remote online notarization (RON), making notary services much more accessible and efficient. RON involves the use of audiovisual technology in conjunction with electronic signature technology to perform a notarial act entirely online. With RON, the signatories and the notary easily complete the transaction via a desktop computer or mobile device.
In states that allow RON, most documents requiring notarization can be notarized remotely, and the signer can usually be located anywhere in the United States. All of this begs the question: will a remote online notarization performed under the laws of one state be recognized in another US state?
When a RON has been properly executed, the remote notarized document generally has the same legal effect as a paper notarized in person document, and therefore must be recognized throughout the United States. As noted by James Denvil and Stevie DeGroff of Hogan Lovells in Remote Online Notarizations Across State Lines, there is a strong case to support this principle rooted in law, court precedent, and the full faith and credit clause of the U.S. Constitution.
Most states have laws recognizing notarial deeds that are valid outside the state
Laws recognizing the validity of notarizations made in other states range from full recognition to more limited recognition in specific circumstances. The first Uniform Acknowledgments Act (‘UAA’) was passed in 1894 and contained provisions for interstate recognition. Since then, several “uniform acts” and “model acts” have been proposed and adopted, offering varying degrees of interstate recognition. One or more of these model laws have been adopted in 36 states, and the remaining states have adopted other provisions granting varying degrees of recognition for notarial acts performed under the laws of another state.
A key feature of interstate recognition law is procedural neutrality, which means that the receiving state does not qualify the recognition on the basis of the procedures used to carry out the notarization, as the notarization procedures differ from state to state. As a state licensed public official, a notary derives his power and authority from the state in which he is appointed, so his actions are governed only by the laws of that state; As long as the notary adheres to the procedural requirements of that state, interstate recognition of their notarial acts should follow.
State courts generally recognize notarial deeds valid outside the State.
For generations, the courts of the receiving state have recognized notarial deeds of other states that have been properly performed under the laws of the other state. For example, in 1912 the North Carolina Supreme Court faced a challenge to the validity of a Texas notarial deed performed by a woman, which was then not supported by Carolina law. North. In Nicholson et al. vs. Eureka Lumber Co., the court dismissed the challenge, noting that the female lawyer had been duly appointed to this office in Texas. Therefore, the legality of the document remained firm in North Carolina.
Courts dealing with the validity of out-of-state notarizations have generally recognized the following four principles:
A notary is a public official of his state of origin and must therefore comply with the law of his state when performing a notarial act.
The validity of a notarial act is determined by the law of the state in which the notary is appointed.
A notary appointed in one state does not have the power to perform a notarial act under the laws of another state.
As long as the notary complies with the law of his own state, the legal and procedural differences between the state of the notary and the state of residence – even if there are fundamental political differences – do not render the legalization invalid or flawed. in the State of residence.
Thus, if a RON is conducted in accordance with the law of the state executing a notary, another state should have to recognize the out-of-state notarization, even if the procedures followed differ from those in the state. of residence.
Full Faith and Credit Clause Supports Interstate Recognition
Denvil and DeGroff of Hogan Lovells further argue that Article IV, Sec. 1 of the United States Constitution (“Faith and credit shall be given in every state to the public documents, records, and court proceedings of every other state.”) Provides strong support for the interstate recognition of RON . As notaries are public officials whose power and authority derive from the laws of their own states, a notary’s public deeds fall under the full faith and credit clause – and the courts have recognized this principle as early as 1889.
Theoretically, interstate recognition could be compromised by the public policy exception to the full faith and credit clause, which allows states to apply local state law to a controversy instead of the law of a dispute. Foreign state when the two laws deal with the same subject and are in conflict. However, as Denvil and DeGroff explain, there is no basis for invoking the public policy exception; as notaries are subject only to the legal requirements of the state in which they are appointed, no conflict can exist with the laws of the state of residence. Therefore, under the full faith and credit clause, notarial deeds properly performed in one state should be recognized as valid in any other state.
What future for the legal recognition of RON?
Just as we have seen with the electronic signature over the past two decades, legal standards surrounding notarization will continue to evolve in ways that facilitate wider adoption of RON. Already, signatories in all 50 states can take advantage of RON, and growing awareness of its benefits will undoubtedly drive demand for an ever wider range of use cases.
Fortunately, there are already well-defined legal principles supporting state recognition of out-of-state RONs. As long as the parties comply with applicable laws, it is natural to expect that a properly executed RON will be recognized in any other state.
You want to know more ? Check out our white paper, Remote Online Notarization Across State Lines (originally published by Hogan Lovells).