THE QUILL ARTICLE
Remote Online Notarization (RON)
There is good news and meh news about RON in North Carolina. After nearly 40 other states have enacted RON legislation, the NC General Assembly has now approved House Bill 776, and the Governor signed the bill. RON has now been enacted as Session Law 2022-54. Although enacted, RON is not yet effective, and it won’t become effective until July 1, 2023. The delay in effective date reflects a conscious decision to allow time to work out unresolved issues in the act, and also to permit the NC Secretary of State to prepare regulations implementing RON in NC.
Another piece of good news is that the act extends recognition of emergency video notarization (EVN). You will recall that the General Assembly enacted EVN law at the start of the COVID-19 lockdowns in 2020, but allowed the authorization for EVN to expire as of the end of 2021. HB 776 reauthorizes EVN through June 30, 2023, and retroactively legalizes EVNs performed after December 31, 2021 that were otherwise compliant with the EVN legislation under NCGS 10B-25.
Although there are similarities, and of course each is intended to facilitate remote notarization: EVN is not RON. Each form of notarization has different requirements and limitations, and as noted above, many of the rules that will govern RON in NC remain to be written or rewritten. EVN primarily offers a procedure to combine a document acknowledged by a principal in NC (only) with acknowledgment by an NC notary in NC (only), after the principal and the notary have conducted an audio-visual conference. The rules governing proof of identification and execution in the conference for EVN remain somewhat ad hoc. Therefore use of EVN for a conveyance document to be covered by title insurance still needs to be discussed with a title insurance underwriter before execution and acknowledgment to assure that the acknowledgment is sufficiently secure for the company to insure.
HB 776 provides for special qualification of RON notaries. A RON notary must be physically present in NC to perform a RON, but the principal making the acknowledgment may be located anywhere in the United States. Unlike the RON statutes of certain other states, however, HB 776 permits RON outside the US only on US military bases and ships, and in US embassies, consulates, and diplomatic missions. The RON notary is charged with determining the location of the principal by “geolocating the remotely located principal.” It is not clear what technology the RON notary is expected to use to “geolocate” the principal, and we expect this question to be a key issue in the upcoming rule-making and in any amendment to HB 776.
As with EVN, the underlying concern about any RON notarial act will be satisfactory verification of the principal’s identity. HB 776 requires the Secretary of State to regulate vendors that will provide the communication technology permitting the real-time meetings between RON notary and remote principal. As with EVN, title insurers may have additional standards for insurability when RON ultimately goes into effect.
~ Jim Saintsing, State Counsel for Fidelity National Title Insurance Company and Commonwealth Land Title Insurance Company
*This memorandum is provided to approved attorneys of Fidelity National Title Insurance Company and Commonwealth Land Title Insurance Company for their general information. It is not a legal opinion or legal advice.
If you have any specific questions related to this article, please feel free to reach out to Natasha Branch directly at
Natasha.Branch@fnf.com
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