North Carolina Adopts Law to Permanently Allow Remote Online Notarization

Last week, Governor Cooper signed House Bill 776 that permanently codifies remote online notarization and restores emergency video notarization. Remote Online Notarization (“RON”) will become effective on July 1, 2023, and Emergency Video Notarization (“EVN”) is effective immediately. 

Electronic notarization has been available in North Carolina since 2005 under the Electronic Notary Act. Under this act, regular notaries who satisfy the training and testing requirements of G.S. 10B-107 can register with the NC Secretary of State’s office as “electronic notaries.” Electronic notaries have the ability to perform certain notarial acts electronically; however, electronic notarization requires that the signer of the document be in the physical presence of the notary.

The physical presence requirement became problematic during the height of the COVID-19 pandemic. North Carolina enacted a temporary EVN law in 2020 to allow all notaries (including regular notaries and electronic notaries) to perform acknowledgments and oaths/affirmations over video conference technology. EVN expired on December 31, 2021; however, House Bill 776 restored EVN such that it may resume, effective immediately, and ratified any EVN occurring after December 31, 2021 and before July 8, 2022.

In addition, House Bill 776 adds a new category of notary – the remote electronic notary. A remote electronic notary can perform any of the notarial acts that an electronic notary can perform (e.g., acknowledgments, jurats, verifications or proofs, and oaths or affirmations), but does not have to be in the physical presence of the signer. RONs may only be conducted using remote communication technology platforms that are secure, capable of recording and geolocation, and licensed by the NC Secretary of State.

Until the permanent RON becomes effective, EVN will continue to be available. House Bill 776 makes a few tweaks to the EVN law (codifed at G.S. 10B-25) but for the most part leaves the rules enacted in 2020 as they are. To summarize the EVN law: 

• Allows any North Carolina notary to notarize a document using video conferencing for a signer located in any county within North Carolina. 
• As long as both parties are physically present in North Carolina, the requirement of “personal presence” is satisfied. 
• “Video conference technology” includes electronic communication that (i) is capable of recording, and (ii) occurs in real time such that the signer and the notary can see and hear each other clearly. 
• The notary must (i) personally know the signer, (ii) know a credible witness who also knows the signer, (iii) or obtain satisfactory evidence of the identity for the signer by viewing an identification card. 
• Identification cards presented by the signer must (i) include the physical description and the signature of the signer, (ii) be issued by a State, Federal or Tribal agency, (iii) contain a photo of the person’s face, and (iv) be current.
• In addition to producing identification, the signer must (i) identify the county where the he or she is located, (ii) verbally state what kind of document is being signed, (iii) hold up the document to the camera for the notary to examine, and (iv) clearly show himself or herself signing the document.
• Notaries are required to keep a journal of each EVN in a secure location for at least 10 years.

When effective, RON will be different from EVN in several notable ways: 

• RON is not permitted for self-proved wills, revocable or irrevocable trusts, acknowledgments of death beneficiary forms, codicils, any documents related to the relinquishment of parental rights, or mail-in absentee ballots.
• The remote electronic notary is required to record the remote electronic notarization session and verify the location of the signer by geolocation. 
• Identification cards must include either the physical description or the signature of the signer, in addition to the other requirements. The notary can refuse to proceed if the identification presented does not meet the requirements.

EVN will remain effective until June 30, 2023. Once the temporary EVN law expires, regular notaries will again require in-person appearance for any notarization; however, under RON, electronic notaries will continue to be able to perform electronic and remote notarization. It is unclear whether notaries who are currently registered with the NC SOS as electronic notaries will need to re-register as remote electronic notaries.

Licensing of communication technology platforms and other specific rules related to RON are being developed by the NC Secretary of State and will be available in advance of the July 2023 effective date. 

The new law also immediately updates the fees that notaries can charge. For acknowledgments, jurats, verifications or proofs, the fee increased from $5 to $10 per principal signature. For oaths or affirmations without a signature, the fee also increased from $5 to $10 per person, except for an oath or affirmation administered to a credible witness to vouch for the identity for a principal or witness. The fee for electronic notarization is $15, and the fee for remote notarization will be $25 when RON becomes effective in July 2023.