Remote Online Notarization and Real Estate Closings

Beginning in January 2020, Florida joined a number of other states that allow for Remote Online Notarization (“RON”). Fla. Stat. § 117.021.  RON allows for the signing of documents that require notarization to be executed in the presence of a notary who is video conferencing with the signer.  However, a notary cannot simply witness a signing using Facetime, Skype, or another similar video conferencing platform and later affix their notary stamp to a document.  The notary must take some extra steps to ensure compliance with Florida law, lender and title underwriter requirements.

In this article we will discuss the reasons for notarization, how RON can make real estate closings more convenient, and the different requirements for a “traditional” notary versus an “online” notary. 

Why Do You Need a Notary in the First Place?

The common experience that most people have when they sign a document that requires notarization is begrudgingly printing the document, then driving to a bank or postal store that has a notary, showing the notary their identification, and then mailing or scanning their document to the party that requested the signature.   Generally speaking, this is highly inconvenient and to most lay persons, the process lacks any immediately identifiable reason for this seemingly archaic chore. 

The reason for notarization is to ensure that the person signing the document is the person who they claim to be. Fla. Stat. §117.05(5).  Notaries, which are statutorily appointed by the governor of the State of Florida, are authorized to administer oaths and acknowledgments.  Fla. Stat. §§ 117.03 and 117.04.  In administering these oaths or acknowledgments, the notary is performing the same function as a clerk or judge asking a witness in a courtroom “Do you swear or affirm the testimony you are about to give is true and correct.”

The notary is not “fact checking” the document to ensure its contents are correct; the only verification the notary is performing is the administration of the oath or acknowledgment and verify the identity of the person giving the oath or acknowledgement.  This verification is why notaries need to see the document being signed and why the notary should not affix their stamp to a document that was signed without their presence.

If the document (say a contract or deed) was ever challenged as being a forgery, the notarization is an added layer of protection for the parties to the document, as the notary verified the identity of the party who signed the document.  If the signature was forged, the forger could be criminally liable for perjury, as the forger lied to an appointee of the government (the notary). Fla. Stat. Chp. 837.  If the notary falsely or fraudulently acknowledges an instrument, they can be found guilty of a third-degree felony.  Fla. Stat., § 117.105.

Real Estate Closings and RON

At Mangrove Title & Legal, PLLC, we offer parties to the transaction the option to sign their closing documents remotely through RON.  If a party chooses this option, they must have the ability to video-conference using their smartphone, tablet, or laptop equipped with a camera and microphone.   If a party is using their smartphone or tablet to video-conference (presuming their laptop or desktop does not have a webcam), they must still have access to a laptop or desktop computer to complete the signing of the documents, as the mobile technologies have viewing limitations.  Our office can coordinate the scheduling of an appointment with our RON provider and one of our closing attorneys will attend the remote signing with the signer to answer any questions on the documents, just like an in-person closing. The signer must upload a copy of their valid photo ID prior to the appointment and the RON service provider will ask the signer to answer several Knowledge Based Identification questions to verify the identity of the signer.  The signer then must display the photo ID to the RON service provider through their webcam. Once the signer’s identity is verified, the closing attorney, RON notary and signer as well as any required witnesses (which are also provided by the RON service provider) go through the documents together and the signer electronically signs. At the conclusion of the session, the RON notary affixes their seal and electronically transmits the documents to the closing attorney to complete the closing.  

This innovative technology gives parties the option to sign closing documents without physically having to travel to the closing table.  Please keep in mind that any lenders involved in the transaction must approve the use of the RON notary prior to closing and there is an additional cost for this service.  If you are interested in utilizing this option, please contact our office for more information.    

Requirements for “Traditional” Notaries and Requirements for Online Notaries 

	“Traditional” Notary	Online Notary
Age and Residency Requirements	18 years old and legal resident of Florida. Fla. Stat. § 117.01(1).	18 years old and legal resident of Florida and must be commissioned as a “regular” notary and as an “online notary public,” through the State of Florida. Florida Admin Code, R. 1N-7.001
Education Requirements	The notary applicant must affirm he or she has read Chapter 117, Florida Statutes, and knows the duties, responsibilities, limitations, and powers of a notary public. Fla. Stat. § 117.01(3). There is not a requirement that the applicant enroll in an education course, however, the State of Florida promotes its education program at this link.	Must complete an online or classroom course that educates the notary on the obligations and technology requirements for being an online notary. F1a. Stat. § 17.225(2).
Location of Notary and Signer at Time of Execution	Must have the document signed in the physical presence of the notary and the signing must take place in Florida. Fla. Stat. § 117.107(9).	Notary must be located in the State of Florida at the time of the notarization, but the signer may be located outside of Florida at the time of signing. Fla. Stat. § 117.209(3). The notary must have the document signed while using audio-video communication technology which enables real-time, two-way communication, and the signing must be recorded. Fla. Stat. §§ 117.201(2), 117.245(2).
Proof of Identity	Signer must present proof of their identity or be personally known to the notary. Fla. Stat. § 117.05(5).	Signer must present proof of their identity or be personally known to the notary, and the notary must use a third-party credential analysis process that affirms the validity of the government-issued identification credential of the signer. Fla. Stat. § 117.265(4).
Bonds and Insurance	Must carry a bond of no less than $7,500 payable to an individual harmed by the notary’s breach of duty. Fla. Stat. § 117.01(7).	Must carry a bond in the amount of no less than $25,000 payable to a party harmed by the notary’s breach of duty and must carry a $25,000 errors and omissions insurance policy. Fla. Stat. §§ 117.225(6),(7)..
Record Keeping Requirements	None required by Florida law. However, the notary’s bonding company may require certain records be kept.	Must keep an electronic journal of online notarizations that details the date, time, type of notarial act, the identities of the signers, the type of identification used by the signer, the fee for the notarization, and a recording of the signing. This journal must be kept for 10 years. Fla. Stat. § 117.245. In the case of wills, the recording of the execution of the will must be maintained by a qualified custodian. See Fla. Stat. § 732.525.

Due to the need to verify a signer’s identity electronically, an online notary must employ third-party software to ensure that the identification presented is authentic.  Fla. Stat. § 117.265(4)(b).  Additionally, the execution of the documents must be recorded by the video-conferencing software that meets certain requirements for quality, which may make some readily available software (such as FaceTime) inappropriate for RON. Fla. Stat. § 117.295(3).. 

In order to identify if a document was notarized in a traditional method or via RON all documents that require a notarization should contain a notarial certificate similar to the following examples from Fla. Stat. §  117.05(13).

Using RON

RON is a viable platform for circumstances where an in-person signing is impractical or inconvenient.  The more stringent requirements for RON training, bonds, and record keeping may make the use of “traditional” notary services a more attractive option for many day-to-day document executions.  Should you need or choose to use RON for a closing, Mangrove Title and Legal, PLLC equipped to assist you with this process.