Mark S. Levenson, Jeffrey Meltzer
April 17, 2020
On April 15, 2020, legislation permitting documents to be notarized
remotely in New Jersey (Assembly Bill No. 3903) was signed into law by Governor
Murphy. The Act takes effect immediately
and shall expire upon rescission of the state of emergency for COVID-19
declared by the Governor under Executive Order No. 103 of 2020.
Under the Act, a notary public of New Jersey and certain other
authorized officers may perform notarial acts using communication technology for a remotely located individual if the following items are
- the notary public or authorized officer: (a) has
personal knowledge of the
identity of the individual appearing before the notary or officer, which is
based upon dealings with the individual sufficient to provide reasonable
certainty that the individual has the identity claimed; or (b) has satisfactory
evidence of the identity of the remotely located individual by oath or
affirmation from a credible witness
appearing before the notary or officer; or
(c) has obtained satisfactory
evidence of the identity of the remotely located individual by using at
least two different types of identity proofing;
- the notary public or officer is reasonably able
to confirm that a record before the notary or officer is the same record in
which the remotely located individual made a statement or on which the remotely
located individual executed a signature;
- the notary public or officer or a person acting
on their behalf creates an audio-visual recording of the performance of the
notarial act; and
- for any remotely located individual who is located outside the United States,
the following particular items must be satisfied: (a) the record: (i) 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 (ii) involves property
located in the territorial jurisdiction of the United States or involves a
transaction substantially connected with the United States; and (b) 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.
The Act does not
apply to notarization of a record to the extent such record is governed by: (1)
the Uniform Commercial Code of New Jersey (N.J.S. 12A:1-101 et seq.), with
certain limited exceptions;
or (2) a statute, regulation or other rule of law governing adoption, divorce
or other matters of family law.
is important to note that if a notarial act is performed using communication
technology, the notary certificate on the document must indicate that the
notarial act was performed using communication technology.
In addition, a recording of the audio-visual session must be retained
for a period of at least ten years after the recording is made.
As used in the Act, the following terms are defined as follows:
- A “remotely located individual” means an
individual who is not in the physical presence of a notary public (or an authorized
officer) performing a notarial act under the Act.
- “Communication technology” means an electronic
device or process that: (1) allows a notary public (or an authorized officer),
and a remotely located individual to communicate with each other simultaneously
by sight and sound; and (2) when necessary and consistent with other applicable
law, facilitates communication with a remotely located individual who has a
vision, hearing or speech impairment.
- “Identity proofing” means a process or service
by which a third person provides a notary public (or an authorized officer)
with a means to verify the identity of a remotely located individual by a
review of personal information from public or private data sources.
- “Satisfactory evidence” means a passport,
driver’s license, or government issued nondriver identification card, which is
current or expired not more than three years before performance of the notarial
act; another form of governmental identification issued to an individual, which
is current or expired not more than three years before performance of the
notarial act, contains the signature or a photograph of the individual, and is
satisfactory to the notary public or authorized officer; or a verification on oath
or affirmation of a credible witness personally appearing before the notary
public or authorized officer and known to the notary public or officer or whom
the notary public or officer can identify on the basis of a passport, driver’s
license or government issued nondriver identification card, which is current or
expired not more than three years before performance of the notarial act.
- “Outside the United States” means a location
outside the geographic boundaries of the United States, Puerto Rico, the United
States Virgin Islands, and any territory, insular possession, or other location
subject to the jurisdiction of the United States.
The Act permits the New Jersey State Treasurer to adopt rules or amend
provisions as necessary to implement the Act, including providing additional
standards for communication technology and identity proofing and the retention
of an audio-visual recording. In this
regard, the State Treasurer is directed to consider the most recent standards promulgated
by national standard-setting organizations (such as the Mortgage Industry
Standards Maintenance Organization) and the recommendations of the National
Association of Secretaries of State. In
the event any additional rules are adopted to implement the provisions of the
Act, we will update this Alert as warranted.
The following provisions of the Uniform Commercial Code are subject to the
Act: the provisions of the “Uniform
Commercial Code – Sales” (chapter 2 of Title 12A of the New Jersey Statutes),
and the provisions of the “Uniform Commercial Code – Leases” (chapter 2A of
Title 12A of the New Jersey Statutes).
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.