The remote online notarization (“RON”) law adopted by Maryland on October 1, 2020, removed the requirement that a State commissioned notary must notarize in the actual physical presence of the individual whose signature requires notarization. Through the Uniform Electronic Transactions Act, notary services may be performed with regard to an electronic signature as long as the signature is made in the presence of the notary followed by the notary completing a certificate, signature, and seal. Luckily, these statutes were in place prior to the COVID-19 pandemic, which caused a substantial shift in the way real estate professionals conduct business and likewise, the expectations of clients.
Gone is the day where all parties, agents, lender, and title company need to be (or want to be, in some cases) in the same room for a closing. Convenience and advances in technology is a good thing, so long as the protections put in place by the law are followed. If you have not been approved by the State to facilitate RON and signed up with a qualified vendor by now, now is the time. RON is not going away. Regardless of what you may have heard, I can say with certainty, there is no Skype, Zoom, or Teams exception in the current Maryland notary law. The procedures and requirements of Maryland’s RON law require a bit of research and understanding. Below provides guidance to get started or alternatively, determine whether your current process is compliant.
Remote E-Notarization: What Does Maryland Require?
How can a remotely located notary public verify that the individual on their computer screen, several states away (or outside of the country), is the person who signed the record at issue for notarization? Maryland answered with a three-step process:
- Remote presentation of an identification credential, such as a passport, driver’s license, consular identification, government identification etc.
- Credential analysis of the identification; and
- Identity proofing of the individual
Though they may appear similar, steps two and three each are a different analysis, and will require contracting with a third party vendor. Let’s discuss each:
- Credential analysis: Employs public or private data sources to confirm the validity of an identification credential (“I.D.”) presented by a remotely located individual. Automated software is used to check that the I.D. presented to the notary is authentic in form, confirm the integrity of visual, physical or cryptographic security features, and compare information on the I.D. to information on record with the issuing source, the outcome of which will be sent to the notary. From this information, the notary can visually compare the identification provided from the software output to the remote individual and the I.D. presented by the remote individual.
- Identity proofing: A knowledge-based authentication that requires a remotely located individual to pass a quiz with at least an eighty percent (80%) score, the results of which are provided to the notary public. The quiz consists of a minimum of five (5) identity-based questions, generated from public or private data sources, and must be answered within two (2) minutes. If the individual fails the quiz, a new quiz is generated where a minimum of forty percent (40%) of the prior questions must be replaced. The particular questions and answers will be hidden from the notary public.
Complexities of Selecting “A Reputable Third Party”
Like the inquiry performed at the “credential analysis” stage, Maryland mandates that the “identity proofing” quiz be created and administered by a reputable third party who has provided evidence to the notary public of the ability to satisfy these requirements. So, how do you know what vendors are reliable? Has the State recommended any vendors? Does your title insurance underwriter require certain vendors? When one considers the influence that this third party vendor has on the judgment of the notary public, it follows that any negligence on behalf of the third party vendor could contribute to an error in identity verification, resulting in an invalid notarization, as well as potential liability of the company handling the transaction.
Maryland does not include further guidance on how to select a third party vendor, nor does it suggest a particular vendor. The law does require though that the notary public inform the Secretary of State of their intent to perform notarial acts using communication technology and state the technology that the notary public intends to use before any remote notarial act is performed. So, one of the first orders of business then is to research vendors now, including the scope of services, software, level of security, and reputation.
Obligation to Record Remote Notarial Acts
Besides coordinating services of a reputable third party as explained above, the law requires that the notary public create and store (or that a repository store on behalf of the notary) an audio-visual recording of the performance of notarial acts for remotely located individuals. Recordings must be stored for at least ten (10) years after the recording is made.
Other Significant Provisions Maryland’s RON Law:
Keep in mind:
- A notary cannot notarize the Will of a remotely-located principal.
- For the notarization of a Power of Attorney, the notary public cannot also serve as one of the witnesses if the principal is remotely located.
- The criteria to qualify as a notary public was revised, including that candidates may be subject to an examination that covers the laws, regulations, procedures, and ethics relevant to notarial acts.
- Clarification on the Governor’s power, for “good cause”, to deny, refuse to renew, revoke, suspend, or impose conditions on a commission as notary public for any act or omission that demonstrates an individual lacks the honesty, integrity, competence, or reliability to act as a notary public.
- Criteria for certifying that a tangible copy of an electronic record is an accurate copy of the electronic record.
- Criteria for providing notary services for a remotely located individual located outside of the United States.
- Required information that must be included on the Certificate of Notarial Act for a notary act involving a remotely located individual.
Every notarial act conducted through RON will require a certification that it complies with the Maryland statute as revised in 2020, to include the use of a third party vendor to provide a credential analysis of the identification presented by the remotely located individual, and administer the results of a quiz to verify the individual’s identity. The notary must also coordinate the recording and storage of every remote notarial act. A certain amount of research will be required to select a vendor compliant with the State law and title insurance underwriters, as applicable, not to mention training afterwards to ensure that RON sessions are conducted properly, including attaching a proper certificate with acceptable language for reliance and recording.
Written by Brianne Paugh, Esq.
Brianne Paugh, Esq. is an Attorney with Highland Title + Escrow in Frederick and North Bethesda, Maryland, as well as counsel to Altum Terra Law. Readers with questions about this or any real estate legal matter can reach Brianne at 240-329-4558.