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DE Senate Bill 262 (2022)

Legislation

State: Delaware
Signed: September 09, 2022

Effective: August 01, 2023
Chapter: 425

Summary
Delaware enacts the Revised Uniform Law on Notarial Acts and its provisions authorizing Notaries to notarize for remotely located individuals (remote notarization).
Affects
Amends Delaware Code Title 29, Sections 4301, 4302, 4306, 4307, 4308, 4311, 4313, repeals Sections 4309, 4310, 4314, and 4321-4329, and adds Sections 4315-4342. Also amends Title 20 Section 3156 and repeals Section 3156.
Changes

Definitions

  1. Defines “acknowledgment,” “electronic,” “electronic signature,” “in a representative capacity,” “notarial act,” “notarial officer,” “Notary Public,” “official stamp,” “person,” record,” “sign,” “signature,” “stamping device,” “state,” and “verification on oath or affirmation.”
  2. Defines “communication technology,” “foreign state,” “identity proofing,” outside the United States,” and “remotely located individual”.
  3. Defines personal knowledge.

Notary Public Commission

  1. No longer requires the following qualifications an applicant for a Notary commission must have: (a) a reasonable need for a Notary commission and (b) good character and reputation.
  2. Requires an applicant for a Notary commission to: (a) be 18 years of age or older; (b) be a citizen or permanent resident of Delaware; (c) be a resident of or have a place of employment in Delaware; (d) be able to read and write English; (e) not be disqualified to receive a commission under Section 29 Del. Code 4342; and (f) comply with other requirements established by the Secretary of State by regulation as necessary to ensure the competence, integrity, and qualifications of a Notary and the proper performance of notarial acts.
  3. Requires a Notary to notify the Secretary of State of a change of address within 30 days of the change and clarifies that an address must include a street address.
  4. Clarifies that a commission to act as a Notary Public authorizes the Notary to perform notarial acts and does not provide the Notary any immunity or benefit conferred by Delaware law on public officials or employees.
  5. Provides that the Governor may deny, refuse to renew, revoke, suspend, or impose a condition on a commission as Notary Public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a Notary, including any of the following: (a) failure to comply with 29 Del. Code Chapter 43; (b) a fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a Notary; (c) a conviction of the applicant or Notary of any felony or a crime involving fraud, dishonesty, or deceit; (d) a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or disciplinary action based on the applicant's or Notary's fraud, dishonesty, or deceit; (e) failure by the Notary to discharge any duty required of a Notary, whether by this chapter, regulations adopted by the Secretary of State, or any federal or state law; (f) use of false or misleading advertising or representation by the Notary representing that the Notary has a duty, right, or privilege that the Notary does not have; (g) violation by the Notary of a regulation adopted by the Secretary of State regarding a Notary; (h) denial, refusal to renew, revocation, suspension, or conditioning of a Notary commission in another state; and (i) a violation under 29 Del. Code 4311(c).

Notarial and Prohibited Acts

  1. Authorizes notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.
  2. Modifies the means of satisfactory evidence of identity for notarial acts to include: (a) a passport, driver's license or government-issued nondriver identification card that is not current or expired before performance of the notarial act; (b) another form of government identification that is current or not expired before performance of the notarial act, contains the signature and a photograph of the individual, and is satisfactory to the officer; or (c) a credible witness who is identified on the basis of a passport, driver's license or government-issued nondriver identification card that is current or not expired before performance of the notarial act.
  3. Provides that if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature msut appear personally before the notarial officer.
  4. Requires a notarial officer who takes an acknowledgment or verification on oath or affirmation, and who witnesses or attests a signature to determine, from personal knowledge or satisfactory evidence, that the individual appearing before the officer and making the acknowledgment or verification or signing the record has the identity claimed, and that in the case of an acknowledgment or verification, that the signature on the record is the signature of the individual.
  5. Requires a notarial officer who certifies or attests a copy of a record or an item that was copied to determine that the copy is a full, true, and accurate transcription or reproduction of the record or item.
  6. Requires a notarial officer who makes or notes a protest of a negotiable instrument to determine the matters set forth in 6 Del. Code 3-505.
  7. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.
  8. Authorizes a notarial officer to refuse a notarial act if the officer is not satisfied that the individual executing the record is competent or has the capacity to execute the record, or the individual's signature is knowingly and voluntarily made, and further authorizes a notarial officer to refuse a notarial act unless refusal is prohibited by a Delaware law other that is contained in the new laws.
  9. Authorizes a notarial officer to perform a notarial act on a record signed by a person on behalf of an individual who is unable to sign, and provides rules, as specified, for this circumstance.
  10. Authorizes a Notary who performs notarial acts on electronic records to charge a maximum fee of $25.
  11. Provides that a Notary Public commission does not authorize an individual to: (a) assist persons in drafting legal records, give legal advice or otherwise practice law; (b) act as an immigration consultant or an expert on immigration matters; (c) represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship or related matters; or (d) receive compensation for performing any of these activities.
  12. Prohibits a notarial officer from performing a notarial act with respect to a record to which the officer or the officer's spouse is a party or in which either of them has a direct beneficial interest, and further clarifies that a notarial act performed in violation of this subsection is voidable.
  13. Prohibits a Notary from engaging in false or deceptive advertising.
  14. Prohibits a Notary who is not an attorney licensed to practice law in Delaware from using the title "notario" or "notario publico."
  15. Requires a Notary Public who is not an attorney licensed to practice law in Delaware and in any manner advertises or represents that the Notary offers notarial services, whether orally or in a record, including broadcast media, print media and the Internet, to include the following statement, or an alternate statement authorized or required by the Secretary of State, in the advertisement or representation, prominently and in each language used in the advertisement or representation: "I am not an attorney licensed to practice law in this State. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities."
  16. Clarifies that if the form of advertisement or representation above is not broadcast media, print media or the Internet and does not permit inclusion of the statement required by this subsection because of size, the statement must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.
  17. Prohibits a Notary from withholding access to or possession of an original record provided by a person who seeks performance of a notarial act by the Notary except as otherwise allowed by law.

Notarial Acts for Remotely Located Individuals

  1. Provides that a remotely located individual may personally appear before a notarial officer using communication technology.
  2. Authorizes a notarial officer located in Delaware to use communication technology to perform a notarial act if the officer (a) has personal knowledge of the remotely located individual, (b) can identify the remotely located individual by the oath or affirmation from a credible witness appearing physically or remotely before the officer, or (3) can identify the remotely located individual by 2 forms of identity proofing.
  3. Authorizes a notarial officer located in Delaware to use communication technology to perform a notarial act if the officer is able reasonably to confirm that a record before the notarial officer is the same record in which the remotely located individual made a statement or on which the individual executed a signature.
  4. Authorizes a notarial officer located in Delaware to use communication technology to perform a notarial act if the notarial officer, or a person acting on behalf of the notarial officer, creates an audiovisual recording of the performance of the notarial act.
  5. Authorizes a notarial officer located in Delaware to use communication technology to perform a notarial act for a remotely located individual located outside the United States if the record (a) is to be filed with or relates to a matter before a public official or court, governmental entity or other entity subject to the jurisdiction of the United States, or (b) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.
  6. Authorizes a notarial officer located in Delaware to use communication technology to perform a notarial act for a remotely located individual located outside the United States if the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
  7. Authorizes a notarial officer to take an acknowledgment of a signature on a tangible record using communication technology if the record is displayed to and identified by the remotely located individual during the audiovisual recording.
  8. Clarifies that for an acknowledgment of a tangible record the requirement for a notarial officer to ensure that both the officer and remotely located individual are viewing the same record is satisfied if (a) the remotely located individual during the audiovisual recording signs the record, makes a written declaration, as specified, under penalty of perjury that is part of or securely attached to the record, and sends the record and declaration to the officer not later than 3 days later; and (b) the notarial officer records the individual sign the declaration and tangible record, and after receipt of the tangible record and declaration executes a notarial certificate with a statement in substantially the following form, “I (name of notarial officer) witnessed, by means of communication technology, (name of remotely located individual) sign the attached record and declaration on (date).”
  9. Provides that an acknowledgment performed by communication technology on a tangible record in compliance with the new law complies with the requirement that a notarial certificate must be executed contemporaneously with performance of the notarial act.
  10. Clarifies that the signed declaration is not the only procedure a notarial officer may use in taking a remote acknowledgment on a tangible record to satisfy the requirement that both the officer and remotely located individual are viewing the same record.
  11. Authorizes a notarial officer located in Delaware to use communication technology to administer an oath or affirmation to a remotely located individual, if, except as otherwise provided by other Delaware laws, the officer identifies the individual under the rules for a remote notarization, creates or causes the creation of an audiovisual recording of the individual taking the oath or affirmation, and retains or causes the retention of an audiovisual recording of the oath or affirmation.
  12. Provides that a short form certificate under 29 Del. Code 4329 is sufficient for a notarial act using communication technology if it complies with any regulations adopted regarding notarial acts for remotely located individuals and contains a statement substantially in the following form: “This notarial act involved the use of communication technology.”
  13. Requires a notarial officer, a guardian, conservator or agent of a notarial officer or a personal representative of a deceased notarial officer to retain the audiovisual recording or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording, and further requires the recording to be retained for at least 10 years unless a different period is required by administrative rule.
  14. Requires a notarial officer to notify the Secretary of State that the officer will be performing notarial acts with respect to remotely located individuals and identify the technologies the officer intends to use before the officer performs the officer’s initial such act.
  15. Provides that a provider of communication technology, identity proofing, or storage appoints the Secretary of State as the provider's agent for service of process in any civil action in Delaware related to the notarial act.

Notarial Acts on Electronic Records

  1. Authorizes a notarial officer to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records.
  2. Prohibits a person from requiring a notarial officer to perform a notarial act with respect to an electronic record with a technology that the officer has not selected.
  3. Provides that before a notarial officer performs the officer's initial notarial act with respect to an electronic record, the officer shall notify the Secretary of State that the officer will be performing notarial acts with respect to electronic records and identify the technology the officer intends to use.
  4. Provides that if the Secretary of State has established standards for approval of technology pursuant to 29 Del. Code 4338, the technology must conform to the standards.

Certificate of Notarial Act

  1. Requires a notarial act to be evidenced by a certificate.
  2. Requires a certificate of notarial act to: (a) be executed contemporaneously with the performance of the notarial act; (b) be signed and dated by the notarial officer and, if the notarial officer is a Notary, be signed in the same manner as on file with the Secretary of State; (c) identify the jurisdiction in which the notarial act is performed; (d) contain the title of office of the notarial officer; and (e) if the notarial officer is a Notary, indicate the date of expiration, if any, of the officer's commission.
  3. Provides a certificate of notarial act is sufficient if it meets the requirements 29 Del. Code 4328(a) and (b), and (a) is in a short form set forth in 29 Del. Code 4329, (b) is in a form otherwise permitted by the laws of Delaware, (c) is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed, or (d) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in 29 Del. Code 4318, 4319, and 4321 or a law of Delaware other than Chapter 43, Subchapter II.
  4. Clarifies that by executing a notarial certificate, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in 29 Del. Code 4317-4319.
  5. Prohibits a notarial officer from affixing the officer's signature to, or logically associate it with, a certificate until the notarial act has been performed.
  6. Requires a tangible notarial certificate to be part of or securely attached to the record.
  7. Requires an electronic notarial certificate to be affixed to or logically associated with the electronic record.
  8. Provides that if the Secretary of State has established standards by rule pursuant to 29 Del. Code 4338 for attaching, affixing or logically associating the certificate, the process must conform to the standards.
  9. Provides short form notarial certificates for an acknowledgment in an individual and representative capacity, a verification on oath or affirmation, a signature witnessing, and a copy certification.

Official Stamp and Stamping Device

  1. Requires a Notary to affix or emboss an official stamp on a tangible notarial certificate.
  2. Provides that if a notarial act is performed regarding a tangible record by a notarial officer other than a Notary and the is signed and dated by the notarial officer, identifies the jurisdiction in which the notarial act is performed, and contains the title of office of the notarial officer, an official stamp may be affixed to or embossed on the certificate.
  3. Provides that if a notarial act regarding an electronic record is performed by a notarial officer and the certificate is signed and dated by the notarial officer, identifies the jurisdiction in which the notarial act is performed, and contains the title of office of the notarial officer, an official stamp may be attached to or logically associated with the certificate.
  4. Requires the official stamp to include the Notary's name, the words, "State of Delaware," the words, "My Commission expires on" and the commission expiration date, and other information required by the Secretary of State.
  5. No longer by statute requires the words “Notary Public” to be included in the Notary’s official stamp.
  6. Requires the official stamp to be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.
  7. Requires a Notary to be responsible for the security of the Notary's stamping device and not allow another individual to use the device to perform a notarial act.
  8. Requires a Notary or a Notary’s personal representative to promptly notify the Secretary of State on discovering that the Notary’s stamping device is lost or stolen.
  9. Provides that on the expiration of the date set forth in the stamping device, if any, a Notary must disable the stamping device by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable.
  10. Provides that on the death or adjudication of incompetency of a Notary, the Notary's personal representative or guardian or any other person knowingly in possession of the stamping device must render it unusable by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable.

Journal of Notarial Acts

  1. Requires a Notary to maintain a journal in which the officer chronicles all notarial acts that the Notary performs.
  2. Requires a Notary to retain the journal for 10 years after the performance of the last notarial act chronicled in the journal.
  3. Authorizes a journal to be tangible or electronic.
  4. Provides that a notarial officer must maintain only one journal at a time to chronicle all notarial acts.
  5. Provides that a tangible journal must be a permanent, bound register with numbered pages.
  6. Provides that an electronic journal must be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State.
  7. Requires the following entries in the journal for each notarial act: (a) the date and time of the notarial act; (b) a description of the record, if any, and type of notarial act; (c) the full name and address of each individual for whom the notarial act is performed; (d) if identity of the individual is based on personal knowledge, a statement to that effect, or if identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the dates of issuance and expiration of any identification credential; and (e) the fee, if any, charged by the notarial officer.
  8. Requires a Notary to promptly notify the Secretary of State on discovering that the Notary’s journal is lost or stolen.
  9. Provides that on resignation from, or the revocation or suspension of, a Notary's commission, the former Notary must retain journal in for 10 years after performance of the last notarial act recorded in the journal and inform the Secretary of State where the journal is located.
  10. Provides that instead of retaining a journal, a former Notary may transmit the journal to the Secretary of State or a repository approved by the Secretary.
  11. Provides that on the death or adjudication of incompetency of a current or former Notary, the Notary's personal representative or guardian or any other person knowingly in possession of the journal shall transmit it to the Secretary of State or a repository approved by the Secretary of State.

Recognition of Notarial Acts

  1. Recognizes notarial acts performed by a Notary, justice, judge, clerk or deputy clerk of a Delaware court, and any individual authorized by a Delaware law to perform a notarial act, clarifies that the signature and title of any of these individuals are prima facie evidence that the signature is genuine and that the individual holds the designated title, and provides that the signature and title of the Notary, judge, clerk or deputy clerk of a Delaware court conclusively establishes the authority of the officer to perform the notarial act.
  2. Recognizes notarial acts performed by a Notary, judge, clerk or deputy clerk of another state, and any individual authorized by law of the other state to perform a notarial act, clarifies that the signature and title of any of these individuals are prima facie evidence that the signature is genuine and that the individual holds the designated title, and provides that the signature and title of the Notary, judge, clerk or deputy clerk of a court of another state conclusively establishes the authority of the officer to perform the notarial act.
  3. Recognizes notarial acts performed by a Notary, judge, clerk or deputy clerk of a federally recognized Indian tribe, and any individual authorized by law of the tribe to perform a notarial act, clarifies that the signature and title of any of these individuals are prima facie evidence that the signature is genuine and that the individual holds the designated title, and provides that the signature and title of the Notary, judge, clerk or deputy clerk of a court of the tribe conclusively establishes the authority of the officer to perform the notarial act.
  4. Recognizes notarial acts performed by a judge, clerk or deputy clerk of a federal court, an individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law, an individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas, and any individual authorized by federal law to perform a notarial act, clarifies that the signature and title of any of these individuals are prima facie evidence that the signature is genuine and that the individual holds the designated title, and provides that except for any other individual authorized to perform the notarial act under federal laws the signature and title of the officer conclusively establishes the authority of the officer to perform the notarial act.
  5. Recognizes notarial acts performed under authority and in the jurisdiction of a foreign state or constituent unit of a foreign state or performed under the authority of a multinational or international governmental organization and provides that if the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established, and that the signature and official stamp of the notarial officer of a foreign state are prima facie evidence that the signature is genuine and the individual holds the designated title.
  6. Clarifies that an apostille issued under the Hague Convention on Authentication or a consular authentication issued by an individual designated by the U.S. Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

Validity of Notarial Acts

  1. Provides that except as otherwise provided in 29 Del. Code 4317(b), the failure of a notarial officer to perform a duty or meet a requirement specified in 29 Del. Code Chapter 43 does not invalidate a notarial act performed by the notarial officer.
  2. Provides that the validity of a notarial act under 29 Del. Code Chapter 43 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 law of this State other than this chapter or law of the United States.
  3. Clarifies that these validity provisions do not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.
  4. Clarifies that the new provisions of the Revised Uniform Law on Notarial Acts do not affect the validity or effect of a notarial act performed before August 1, 2023.

Other Provisions

  1. Requires the Secretary of State to maintain an electronic database of Notaries Public that (a) permits a person to verify the authority of a Notary to perform notarial acts; and (b) indicates whether a Notary has notified the Secretary of State that the Notary will be performing notarial acts on electronic records or for remotely located individuals.
  2. Provides that a Recorder of Deeds may accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record.
  3. Clarifies that the provisions of the Revised Uniform Law on Notarial Acts apply to notarial acts performed on or after the August 1, 2023.
  4. Repeals the prior Delaware electronic notarization statutes.
  5. Extends the Eleventh Modification of the State of Emergency Declaration, dated April 15, 2020, until July 31, 2023.
  6. Makes technical changes.

Regulations

  1. Authorizes the Secretary of State to adopt rules to implement all of 29 Del. Code Chapter 43.
  2. Authorizes the Secretary of State to adopt rules for notarial acts for remotely located individuals.
  3. Clarifies that regulations adopted regarding the performance of notarial acts with respect to electronic records may not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification.
Analysis

Delaware becomes the latest state to enact the Revised Uniform Law on Notarial Acts (RULONA) and the 30th jurisdiction overall. Delaware also becomes the 44th state to enact remote notarization provisions. Senate Bill 262 follows the RULONA closely. The bill also repeals the former electronic notarization statutes because the RULONA has more simplified provisions on in-person electronic notarization. The most noteworthy provision in Senate Bill 262 is the mandatory journal requirement for all notarial acts. Journal laws increasingly are being enacted across the states, and these laws help support the evidence and integrity of notarial acts, as well as protect signing and relying parties and Notaries who perform the notarial acts. The bill takes effect on August 1, 2023. Between now and then, we expect the Secretary of State to adopt rules to implement Senate Bill 262.

Read Senate Bill 262.

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