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VT House Bill 512

Legislation

State: Vermont
Signed: June 02, 2022

Effective: July 01, 2022
Chapter: Act No. 171

Summary
Vermont enacts the 2021 amendments to the Revised Uniform Law on Notarial Acts (RULONA) for notarizations for remotely located individuals and also enacts the Uniform Real Property Electronic Recording Act (URPERA).
Affects

Adds Sections 621-626 to title 27, amends Sections 5304, 5323, 5324, 5341, 5362-5364, 5368, and 5371 of, and adds Section 5379-5380 to Title 26 of the Vermont Statutes Annotated.

Changes

Definitions

  1. Defines the terms “communication technology,” “foreign state,” “identity proofing., “outside the United States,” and “remotely located individual.”
  2. Amends the definition of “notarial act” to mean a Notary or other individual authorized to perform a notarial act.
  3. Amends the definition of “official stamp” to mean a means a physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record.

Notary Commission and Special Endorsement

  1. Raises the fee for the issuance of a Notary commission from $15 to $30.
  2. Prescribes that for issuance of a special endorsement authorizing the performance of electronic and remote notarial acts in accordance with Section 5341(d), the Office of Professional Regulation shall collect a fee of $30.
  3. Provides that a Notary must not perform a notarial act on an electronic record or for a remotely located individual without obtaining a special endorsement from the Office of Professional Regulation.
  4. Clarifies that a Notary must hold a Notary commission to be eligible for a special endorsement to perform notarial acts on electronic records and for remotely located individuals.
  5. Provides that the Office of Professional Regulation shall adopt rules for obtaining and regulating a special commission endorsement authorizing a Notary to perform notarial acts on electronic records and for remotely located individuals.
  6. Provides that the rules adopted by the Office of Professional Regulation must require notaries public performing notarial acts on electronic records and for remotely located individuals to ensure the communication technology and identity proofing used for the performance of the notarial act on electronic records or for remotely located individuals comply with the requirements of Section 5380 and any rules adopted by the Office in accordance with Section 5323.
  7. Requires a Notary to apply for the special commission endorsement for the performance of notarial acts on electronic records and for remotely located individuals by filing with the Office of Professional Regulation an application provided by the Office accompanied by the required fees and evidence of eligibility, as required in rules adopted by the Office in accordance with Section 5323.
  8. Clarifies that a commission to act as a Notary authorizes the Notary to perform notarial acts except for notarial acts on electronic records or for remotely located individuals.
  9. Clarifies that a commission with a special endorsement issued under Section 5361(d) authorizes a Notary to perform notarial acts on electronic records and for remotely located individuals.

Notarial Acts

  1. Authorizes a Notary to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.
  2. Provides that a Notary who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true, and accurate transcription or reproduction of the record or item.
  3. Provides a statutory short form certificate for certifying a copy.

Notarial Acts on Electronic Records

  1. Provides that a Notary holding a special commission endorsement pursuant to Section 5341(d) and who is thus authorized to perform notarial acts on electronic records may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records and repeals the prior requirement that a Notary select a technology that has been approved by the Office of Professional Regulation.

Notarial Acts for Remotely Located Individuals

  1. Provides that a remotely located individual may comply with Section 5364 by using communication technology to appear before a Notary with a special commission endorsement.
  2. Authorizes a Notary located in Vermont to perform a notarial act using communication technology for a remotely located individual if the Notary holds a special commission endorsement pursuant to Section 5341(d).
  3. Authorizes a Notary located in Vermont to perform a notarial act using communication technology for a remotely located individual if the Notary (a) has personal knowledge under Section 5365(a) of the identity of the individual; (b) has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the Notary under Section 5365(b); or (c) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
  4. Authorizes a Notary located in Vermont to perform a notarial act using communication technology for a remotely located individual if the Notary is reasonably able to confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the individual executed a signature;
  5. Authorizes a Notary located in Vermont to perform a notarial act using communication technology 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; and (c) 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.
  6. Authorizes a Notary located in Vermont to use communication technology to administer an oath or affirmation to a remotely located individual if, except as otherwise provided by other law of this State, the Notary: (a) identifies the individual in compliance with Section 5379(b)(2); (b) creates or causes the creation of an audiovisual recording of the individual taking the oath or affirmation; and (c) retains or causes the retention under Section 5379(k) of the recording.
  7. Requires the Notary to ensure that the communication technology and identity proofing used to perform a notarial act for a remotely located individual complies with Section 5380 and any standards adopted by the Office of Professional Regulation in accordance with Section 5323.
  8. Provides that if a notarial act is performed for a remotely located individual, the certificate of notarial act required by Section 5367 and the short-form certificate provided in Section 5368 must indicate that the notarial act was performed using communication technology.
    Clarifies that a short-form certificate provided in Section 5368 for a notarial act for a remotely located individual is sufficient if it: (a) complies with rules adopted under Section 5323; or (b) is in the form provided in Section 5367 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”

Remote Notarial Acts on Tangible (Paper) Records

  1. Authorizes a Vermont Notary to use communication technology to take an acknowledgement of a signature on a tangible record physically present before the Notary if the record is displayed to and identified by the remotely located individual during the audiovisual recording.
  2. Provides that the requirement under Section 5379(b)(3) for the performance of a notarial act with respect to a tangible record not physically present before the Notary is satisfied if the remotely located individual during the audiovisual recording under Section 5379(b)(4), signs the record and a declaration, in substantially the following form below, that is part of or securely attached to the record and sends the record and declaration to the Notary not later than 3 days after the notarial act was performed.
  3. Provides that the declaration of a remotely located individual for the taking of an acknowledgment on a tangible record by communication technology must be substantially in the following form: “I declare under penalty of perjury that the record of which this declaration is part or to which it is attached is the same record on which (name of Notary), a Notary, performed a notarial act and before whom I appeared by means of communication technology on (date).”
  4. Provides that the declaration of a remotely located individual for the taking of an acknowledgment on a tangible record by communication technology must include the signature and printed name of the remotely located individual.
  5. Provides that in taking of an acknowledgment on a tangible record by communication technology the Notary must (a) record in audiovisual recording the individual signing the record and declaration; and (b) after receipt of the record and declaration from the individual, execute a certificate of notarial act under Section 5367, which must include a statement in substantially the following form: “I, (name of Notary), witnessed, by means of communication technology, (name of remotely located individual) sign the attached record and declaration on (date).”
  6. Provides that a notarial act performed on a tangible record by communication technology in compliance with Section 5379(d) complies with Section 5367(a)(1) and is effective on the date the remotely located individual signed the declaration under Section 5379(d)(1)(A)(ii).
  7. Provides that the requirements of Section 5379(d) do not preclude use of another procedure to satisfy Section 5379(b)(3) for a notarial act performed with respect to a tangible record. 

Recordings of Notarial Acts for Remotely Located Individuals

  1. Authorizes a Notary located in Vermont to perform a notarial act using communication technology for a remotely located individual if the Notary, or a person acting on behalf of the Notary, creates an audiovisual recording of the performance of the notarial act.
  2. Provides that unless a different period is required by rules adopted under Section 5323, the recording must be retained for a period of at least 10 years after the recording is made.
    Requires providers of the communication technologies, identity proofing, or storage must be registered with the Secretary of State to do business in Vermont and, by allowing communication technology or identity proofing to facilitate a notarial act of an electronic record or for a remotely located individual or by providing storage of the audiovisual recording, providers consent and agree that the service or process being provided is in compliance with the requirements set forth in this chapter and with any rules adopted by the Office of Professional Regulation.
  3. Requires a Notary, guardian, conservator, or agent of a Notary or a personal representative of a deceased Notary 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.

Standards for Technology Providers

  1. Requires communication technology and identity proofing providers to develop, maintain, and implement processes and services that are consistent with the requirements of Title 26, Chapter 103 of the Vermont Statutes Annotated and industry standards and best practices for the process or service provided.
  2. Requires providers to also comply with all applicable federal and state regulations, rules, and standards, including: (a) with respect to communication technology, regulations, rules, and standards specific to simultaneous communication by sight and sound and information and communication technology for individuals with physical, sensory, and cognitive disabilities; and (b) with respect to identity proofing, regulations, rules, and standards specific to the enrollment and verification of an identity used in digital authentication.
  3. Requires a provider of communication technology or identity proofing to provide evidence to the Notary’s satisfaction of the provider’s ability to satisfy the requirements of Title 26, Chapter 103 of the Vermont Statutes Annotated for the service or process being provided.

Rules

  1. Clarifies that the Office of Professional Regulation may adopt rules to (a) prescribe the process of granting, renewing, suspending, or revoking the commission or special commission endorsement of or otherwise disciplining a Notary and assuring the trustworthiness of an individual holding a commission or special commission endorsement as Notary; (b) establish standards for communication technology and identity proofing; (c) establish standards and a period for the retention of an audiovisual recording created under Section 5379; and (d) prescribe methods for a Notary to confirm, under Sections 5379(c) and (d), the identity of a tangible record.
  2. Repeals the prior provision stating that neither electronic notarization nor remote online notarization shall be allowed until the Secretary of State has adopted rules and prescribed standards in these areas.

Other Changes

  1. Provides that a requirement that a document eligible to be recorded in the land records or a signature associated with such a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature.
  2. Clarifies that a physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature on a document eligible to be recorded in the land records.

Analysis

In 2018, Vermont enacted the Revised Uniform Law on Notarial Acts as Act No. 160 (House Bill 526). That bill contained sweeping reforms for Vermont Notaries. It also said allowed Notaries to perform notarial acts on electronic records or involving the use of communication technology but delayed the effective date of those provisions until the Secretary of State could adopt rules for these notarizations. Then the COVID-19 pandemic hit, and the focus was shifted to emergency rules to allow remote notarization tied to the pandemic. The permanent rules never were drafted. With House Bill 512, effective July 1, 2022, a Notary can perform these technology-based notarizations once the Notary applies for and is granted a special endorsement to their Notary commission. Rules still may be forthcoming, but the new law does not require the rules to be issued before Notaries can perform these notarial acts, provided Notaries obtain the special endorsement that grants them the authority to perform technology-based notarial acts.

Read House Bill 512.

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