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SD Senate Bill 211

Legislation

State: South Dakota
Signed: March 14, 2024

Effective: July 01, 2024
Chapter: 71

Summary

South Dakota authorizes both in-person electronic and remote online notarial acts along with other changes.

Affects

Amends Sections 7-9-7.4, 18-1-1.1, and 18-1-3.1 of, and adds as yet uncodified new sections to Chapter 18-1 to, the South Dakota Codified Laws.

Changes

Definitions

  1. Defines “‘document’ or ‘record,” "identity proofing," "remotely located person," and “tamper-evident.”
  2. Clarifies that “notarial act” means an act that a notarial officer may perform under South Dakota law on either a tangible or electronic record.
  3. Provides (confusingly) that a notarial officer has personal knowledge of the identity of a person appearing before the officer for a notarial act if the officer can reasonably identify the individual by two different methods of identity proofing.
  4. Defines “official seal” to mean a seal, stamp, or physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record.

Notary Seal

  1. Strikes a prior provision permitting a Notary seal to be a rubber stamp or physical device capable of affixing or embossing on a tangible document.
  2. Clarifies that rubber stamp seals and electronic seals must contain the words and seal within the surrounding border.

Notification to Perform Notarial Acts on Electronic Records

  1. Requires a notarial officer, prior to performing notarial acts with respect to electronic records, to select at least one tamper-evident electronic notarization system with which to place the signature and official seal of the notarial officer on electronic records.
  2. Prohibits a person from requiring a notarial officer to perform a notarial act with respect to an electronic record with a system that the notarial officer has not selected.
  3. Requires a notarial officer to notify the Secretary of State, on forms prescribed by the Secretary, of the names of each tamper-evident notarization system used by that notarial officer for the notarization of electronic records.

Remote Notarial Acts

  1. Authorizes a notarial officer to perform a remote notarial act on an electronic record if the officer (a) has personal knowledge by means of two different methods of identity proofing, that the person has the identity being claimed; (b) affixes the notarial officer's signature to the electronic record executed by the person; (c) indicates the remote location of the person executing the document in the notarial certificate pursuant to Section 11 of the new law; (d) indicates in the notarial certificate pursuant to Section 11 of the new law that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of video communication technology, and a tamper-evident electronic notarization system; and (e) creates an audio-visual copy of the performance of the notarial act.
  2. Authorizes the Secretary of State to promulgate rules for (a) online notarial acts, including credential analysis, identity proofing, and communication technology, and (b) ensuring the integrity, security, and authenticity of online notarial acts in accordance with the new law.

Records of Remote Notarial Acts

  1. Requires a notarial officer to retain an electronic audio-visual copy of each notarial act involving the use of a tamper-evident notarization system for ten years from the date of the performance.
  2. Provides that upon suspension or revocation of a notarial officer's commission, or upon death or incapacity, the notarial officer or the guardian, conservator, or personal representative of the incapacitated or deceased notarial officer must retain an electronic audio-visual copy of each notarial act for ten years.
  3. Provides that in lieu of retaining an electronic audio-visual copy of each notarial act, the copies may be held by a repository designated by or on behalf of the notarial officer.

Certificate of Notarial Act

  1. Requires the copy certification certificate for a paper printout of an electronic record to be in substantially the following form specified in Section 8 of the new law.
  2. Contains a statutory certificate form for a remote electronic notarial act.

Validity of Notarial Acts

  1. Clarifies that the failure of a notarial officer to perform a duty or meet a requirement specified by law does not invalidate a notarial act performed by the notarial officer.
  2. Clarifies that the validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on the law of this state or the law of the United States.
  3. Clarifies that nothing in Section 10 of the new law validates a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

Other Changes

  1. Clarifies that an original signature is not required for any document to be recorded or filed in the register of deeds' records if the document (a) contains electronic signatures executed and notarized in accordance with the requirements of Section 4 of the new law and is recorded electronically pursuant to SDCL 7-9A and (b) is a printed copy of an electronic record containing electronic signatures executed and notarized in accordance with the requirements of Section 4 of the new law and a certificate acknowledging the authenticity of the copy pursuant to Section 7 of the new law.
  2. Requires a register of deeds to record a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a signature on a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies the tangible copy is an accurate copy of the electronic record pursuant to Section 8 of the new law.
  3. Makes technical changes.
Analysis

When South Dakota enacted its remote notarization law in 2019, the law only allowed remote notarial acts to be performed on paper documents, required the notarial officer performing the remote notarial act to identify the signer based only on personal knowledge, and did not require the notarial officer to make and retain an audio-visual recording of the remote notarial act. Senate Bill 211 this year corrects these faults and along with them also authorizes a notarial officer to perform notarial acts on electronic records (in-person electronic notarial acts). The new law also picks up the validity of notarial acts provisions from the Revised Uniform Law on Notarial Acts and authorizes a notarial officer to certify as a true copy a paper printout of an electronically notarized record. Unfortunately, while the law made significant corrections and aligned its remote notarization statutes with the laws of almost every other state, it made one very confusing change. It expanded the definition of “personal knowledge” to mean a notarial officer identified a remotely located individual for a remote notarial act by two forms of identity proofing. In virtually every other state with a remote notarization law, two forms of identity proofing is not considered personal knowledge.

Read Senate Bill 211.

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