By: John H. Friedhoff and Robert H. Friedhoff
As Published in Global Law Experts
Florida's remote online notarization statutes are based upon a model law that has been enacted in many states in the United States. Online notarizations in Florida and other states have been treated as valid notarizations in many, if not all, of the United States; online notarizations have also received apostilles, an international certificate of authenticity per Apostille Convention, and have functioned in foreign countries. How has this benefited our foreign clients, family offices and foreign attorneys with whom we work?
- It has liberated foreigners from the long lines, appointments, and delays of the United States consulate that was frequently required to notarize documents for U.S. requirements;
- Allowed a foreigner* to have his/her signature(s) notarized by videoconference, (while in a foreign country) so he/she do not need to leave their house in order to get something notarized, even by their own local notary;
- Allowed foreigners to have their signatures apostilled in the United States by virtue of the remote online notarization statute;
- Allowed foreigners to avoid costly notarization done by foreign notaries;
- Allowed foreigners to avoid having their notarizations appear in a foreign governmental record or in a foreign notarial protocol;
- Remote Online Notarization (RON) does allow for inspection by an interested party as noted in Florida Statutes Chapter 117, Part II (117.255(2))**:
- While the videoconference is allowed, platforms such as Zoom, FaceTime or the like may not be used; instead, a specific platform needs to be utilized which provides for inspection of the records maintained by the online notaries;
- In the real estate arena, a remote online notarization allows for deeds to be executed; such that the foreigner need not travel to the U.S. to attend a purchase or sale of a vacation house;
- There are retention requirements, creation requirements, and security and maintenance requirements all specified in the Florida Statute 117 ***and in particular section 117.245 and 117.295 which require a retention of 10 years along with a backup copy. The recording is more formal than what is presently required from a notary public. RON notarizations require the notary to recite the notarization to be performed as well as providing for confirmation of the identities of all the principals and witnesses involved. The recording of this event must be both clear from both video and audio perspective;
- The notary must keep an electric journal of online notarization which is seemingly similar to the civil law requirements of a notary to keep a "protocol";
- Inspection of the records are can be made upon request at no charge to certain parties, including any of the individuals involved in the electronically recorded notarization as well as such individuals that would normally be involved in the real estate closing, such as a title insurer and settlement attorney. These are individuals that rely upon proper notarization in order to insure title to the property. They are listed in number 6 above and the footnote below.
In summary, the pandemic has prompted a more efficient and arguably more secure manner to have documents notarized by U.S. attorneys, not only of U.S. citizens, but of foreigners located abroad and to allow notarized documents recognition in those countries which recognize apostilles. Furthermore, remote online notarization is more discrete such that foreigners can also prevent their identification from being disclosed in their home countries with respect to specific transactions under most circumstances, and they can do from the comfort of their own home abroad.
Assistance with online notarizations can be obtained by contacting the authors.
*While most institutions accept the Florida notarization of a foreigner, some real estate title insurance companies are reticent to do so. In such cases, an online notary in the state of Virginia is a practical alternative.
**(2) An online notary public shall provide electronic copies of pertinent entries in the electronic journal, and a RON service provider shall provide access to the related audio-video communication recordings, or a copy thereof, to the following persons upon request:
(a) The parties to an electronic record notarized by the online notary public;
(b) The qualified custodian of an electronic will notarized by the online notary public;
(c) The title agent, settlement agent, or title insurer who insured the electronic record or engaged the online notary public with regard to a real estate transaction;
(d) Any person who is asked to accept a power of attorney that was notarized by the online notary public;
(e) The Department of State pursuant to a notary misconduct investigation;
(f) Any other persons pursuant to a subpoena, court order, law enforcement investigation, or other lawful inspection demand;
(g) With respect to audio-video communication recordings of an online notarization, the online notary public performing that notarization; and
(h) With respect to electronic copies of pertinent entries in the electronic journal, the RON service provider used for the online notarizations associated with those entries.