I jokingly say now, “We can now close a real estate deal even for an astronaut in outer space!” Effective January 1, 2020, Florida passed game-changing legislation easing notary roadblocks by allowing buyers and sellers to have their signatures notarized wherever they are in the world.
Florida Chapter 117 Part II, now permits us as specially licensed Remote Online Notaries (dubbed “RON”), to use audio/visual technology to notarize documents. In other words, we no longer need a signer “physically present” before us as notaries in order to notarize a document. Documents can be signed and notarized digitally without being in the same room, building, state, or even the same country. This is amazing for international, military, and out-of-state clients!
RON Qualifications. Becoming a RON requires: an additional two (2) hour notary course; $25,000 E&O insurance; $25,000 bonding; and the use of a third-party provider of: audio-video communication technology, credential analysis, and government ID verification. §117.225.
Limitations. RON can perform all functions of a notary except marrying individuals. §117.209
How to do a RON (Checklist)? The RON must: (1) be physically in Florida but signers (referred to as “principals” or any witness to a principal) may be anywhere; (2) record the audio-video conference using real-time, two-way communication by electronic means where participants are able to see, hear, and communicate with one another; (3) At the commencement of the recording advise the signer the RON will be notarizing; (4) Provide a general description or identification of the records to be signed; (5) Ask Where are you currently located? If the signer is not in Florida, confirm the signer wants the notarization performed by a Florida Notary and under Florida law; (6) confirm the signers’/witnesses’ identity by either: attesting to personally knowing the signer; or from the signer: (i) remotely presenting a government issued ID and confirming their identity; and (ii) passing a “credential analysis” (where a 3rd party verifies the government-issued ID’s validity); and (iii) passing an “identity proofing” (where a 3rd party verifies the signer’s identity through questions or via biometric verification); and (6) Obtain a declaration from the signer that their signature is knowingly and voluntarily made. §§117.265, 117.245, 117.209, 117.201.
“Identity Proofing” the signer. To verify the signer’s identity who is not personally known to the RON, the signer must within two (2) minutes correctly answer four (4) out of five (5) questions formulated from public or proprietary data sources, and will be given five (5) possible answer choices per question. If the signer fails, the signer may be offered one (1) additional attempt, and during that attempt, the signer may not be presented with more than three (3) questions from the prior attempt. §117.295
Additional questions for signers. The RON may want to ask: Who is in the room with you?, Are you under the influence of any drug or alcohol today that impairs your ability to make decisions?, Do you have any physical or mental condition or long-term disability that impairs your ability to make decisions?
Witnesses. A witness can be physically with the principal signer or can also be present using audio-video technology. If the witness is remote from the principal signer then, (1) the RON needs to verify the witness’ ID just like any other signer; (2) the witness must hear the principal signer say that the principal has signed the electronic record; (3) the witness must verbally confirm they are a resident of and currently physically located in the US or its territory. §117.285
Notary block. RONs must use an electronic notary seal identifying the RON as an “online notary.” §117.265. The traditional notary block has been changed for all types of notaries (not just RONs) in that it must now state whether the signer was physically or virtually present. §117.05 Examples are shown below for different types:
FOR ACKNOWLEDGEMENTS BY AN INDIVIDUAL:
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me by means of ? physical presence or ? online notarization, this ______ day of ______, 20___, by _____________________________, and who: ? is personally known to me; or ? produced as identification ___________________.
(Signature of Notary Public – State of Florida)
(Print or Stamp Commissioned Name of Notary Public)
(State “Online Notary” if that is the case)
FOR ACKNOWLEDGEMENTS IN A REPRESENTATIVE CAPACITY:
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me by means of ? physical presence or ? online notarization, this ______ day of ______, 20___, by _____________________________, as _____________________ (type of authority) for _________________________ (name of party on behalf of whom instrument was executed) and who: ? is personally known to me; or ? produced as identification ___________________.
(Signature of Notary Public – State of Florida)
(Print or Stamp Commissioned Name of Notary Public)
(State “Online Notary” if that is the case)
FOR OATHS OR AFFIRMATIONS:
STATE OF FLORIDA
COUNTY OF ________
Sworn to (or affirmed) and subscribed before me by means of ? physical presence or ? online notarization, this ______ day of ______, 20___, by _____________________________ who: ? is personally known to me; or ? produced as identification ___________________.
(Signature of Notary Public – State of Florida)
(Print or Stamp Commissioned Name of Notary Public)
(State “Online Notary” if that is the case)
Charges. RON may charge up to $25 per online notarization §117.275, §117.05(2), plus $20 per transaction record for making and delivering electronic copies of a given series of related electronic records, except if requested by: (a) A party to the electronic record, or (b) In real estate transactions, the title agent, settlement agent, or title insurer who insured the electronic record or engaged the online notary public with regard to such transaction. §117.255
Record keeping. The RON must keep detailed electronic journals and retain the audio-video recording thereof for ten (10) years. §117.245.
Applicable law. The online notarization’s validity will be determined by Florida law, regardless of the signer’s location. §117.209.
Employer Liability. In addition to notaries being liable for their actions an “employer of a notary public shall be liable to the persons involved for all damages proximately caused by the notary’s official misconduct, if the notary public was acting within the scope of his or her employment at the time the notary engaged in the official misconduct.” §117.05(6).
What if the RON messes up (defenses)? While there may be ramifications for the RON not being allowed to notarize anymore, “Any failure to comply with the online notarization procedures … does not impair the validity of the notarial act or the electronic record that was notarized, but may be introduced as evidence to establish violations of this chapter or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes.” §117.265
* Additional notarial requirements apply for wills under chapter 732, trusts with testamentary aspects under chapter 736, health care advance directives, waivers of spousal rights under §732.701 or §732.702, and powers of attorney authorizing transactions in §709.2208.
DISCLAIMER: Topics discussed are general concepts, not intended to constitute legal advice, accuracy, nor completeness, and may not be relied upon as such; consult an attorney or accountant. The author Randy Gilbert, J.D. is neither an attorney nor an accountant. FTIC is a national award winning title insurance company known for its white glove customer service and “No Junk Fee Guarantee.” ®