04/22/2020 by James B. Rixey, III, Esq.
In light of the recent social distancing guidelines, parties are searching for alternative methods of doing business and closing transactions while avoiding face-to-face interaction. As a result, the issue of electronic notarization and remote notarization has gained increasing importance. Are these alternative methods to the traditional notarization process – which typically requires signing a document in the physical presence of a notary – permitted in Virginia?
In fact, there really are two separate issues: (1) whether electronic notarization or “e-notarization” is available (where the actual process of notarizing the document is done electronically), and (2) whether a notary can notarize a document after “remotely” witnessing a signature via video (remote notarization).
The short answer is “yes” to both: (1) electronic notarization is available in Virginia, but it requires certain technological capabilities and a notary who has obtained an additional certification, and (2) a notary may remotely witness a signature in Virginia, provided certain requirements are met.
Electronic Notarization (e-notarization)
Electronic notarization, or e-notarization, is permissible in Virginia. In e-notarization, the document being notarized is itself in electronic format, such as a .pdf (and not a physical piece of paper). The notary uses a computer program to electronically “stamp” the notary’s signature and seal. This e-notarization process otherwise must meet the requirements of a traditional notary, except that the notary’s signature and seal information is affixed electronically and is not physically “stamped” on the piece of paper. This electronic stamp and signature must be unique and independently verifiable. Once electronically stamped, the document carries that notary stamp and it cannot be removed.
As a caution, however, not all notaries may perform e-notarization. A notary must first register with the Secretary of the Commonwealth and demonstrate certain technological capabilities related to electronic signatures and seals. In order to apply for an e-notarization certificate, a notary must e-sign the application using the program that the notary will use to electronically notarize documents.
An electronic notary is required to keep a record of all electronic notarization acts for five (5) years.
The e-notarization process can be used to electronically notarize a document with the signer of the document appearing either in person or by video technology (remote notarization).
Remote Notarization (remote online notary, or RON)
In Virginia, notarizing a document “remotely” is permissible. In fact, Virginia became the first state in 2012 to formally authorize and provide a legal framework for such notarizations. In performing remote (online) notarizations, the notary must abide by the normal notary rules, except that the signer is allowed to appear via video and sign on video, as opposed to physically signing in the presence of the notary.
To appear remotely via video: (i) the notary and document signer must simultaneously see and speak to each other, (ii) the video/audio feed must be live and in real time, and (iii) the transmission must be “secure from interception through lawful means by anyone other than the persons communicating.”
There are also stricter requirements for verifying the identity of the person signing the document. The notary must obtain satisfactory evidence of the identity of the signer by (i) personal knowledge, (ii) antecedent (previous) proofing – relying on a prior in-person verification process meeting certain requirements, or (ii) biometrics or PIV card.
The notary is required to keep a record of all remote video notarial acts for a period of five (5) years.
Typically, when remote notarization is used, the notary will also electronically notarize the document, as it will likely all be done in the same computer program at the same time.
Additionally, related information regarding electronic notarization and remote notarization can be found on the Secretary of the Commonwealth’s website, and in the Handbook for Virginia Notaries Public, published by the Office of the Secretary of the Commonwealth.
About the Author
Jay’s corporate practice includes advising businesses on a variety of organizational and corporate matters, including business formation, preparation and review of operating agreements and other corporate documents, and contract review and negotiation. For more information, please contact Jay – firstname.lastname@example.org.