Devine Millimet | NH Law Firm

THE SHOW MUST GO ON – New Hampshire Notary Services in Light of COVID-19

Author: Joseph P. Rheaume, Esq.

March 26, 2020

In this time of social distancing becoming the new normal, business must go on, which includes certain legal actions, such as using a notary public to deter fraud and ensure proper execution of specific legal documents.  Notary publics are responsible for ensuring that signers of those legal documents have appeared before them and have produced proper identification.  Notary publics officiate the signing of those legal documents to achieve the foregoing objectives. 

Enter the novel coronavirus (COVID-19) and the concept of social distancing.  Social distancing, which is meant to slow the spread of COVID-19, also prevents those in need of a notary public from appearing before a notary officer in the traditional sense.  In response to the pandemic and the ongoing need for notary services, Governor Sununu has signed Emergency Order #11 pursuant to Executive Order 2020-04 (“Emergency Order #11”), “Temporary authority to perform secure remote online notarization” which enables those needing notary services to obtain such services while adhering to social distancing for the duration of the State of Emergency that Governor Sununu declared as a result of COVID-19.

Emergency Order #11 permits “a notarial officer commissioned under the laws of [New Hampshire to] perform a notarization for an individual not in the physical presence of the notary officer” under certain conditions.  The individual and the notarial officer must be able to both hear and see each other through an electronic device or process at the time of the notarization.  This can be accomplished through any number of cell phone and computer applications, including FaceTime, Zoom, Google Hangouts and Wire.  Once connected, the notarial official must reasonably identify the individual by one or more of the means enumerated in Emergency Order #11, which includes among other things, the notarial official personally knowing the individual or through certain third party processes. 

Additionally, the notarial official must, either directly or through an agent, create an audio and visual recording of the performance of the notarization and retain that recording as a notarial record during the term of the notarial officer’s office.  This necessitates learning how to record audio and visual.  Always begin by first letting the person on the other end know that you are recording him or her.  If you have an Apple MacBook, then click “file” to expose the dropdown menu and then click “New Screen Recording.”  Press the red button and click anywhere on the screen to start recording the entire screen and then pull down the inverted triangle icon to tick some of the selections according to your need, such as including the microphone.  Finally, start a FaceTime call on your FaceTime window and select the recording button on the top bar.

It should be noted that with regard to any transactions requiring title insurance, the recording source must be secure, which the previously mentioned mediums are not. Additionally, if title insurance will be required, a series of affidavits also need to be executed.

For someone located outside of New Hampshire, where the record is intended for filing with or relates to a matter before a court, governmental entity, public official or other entity subject to New Hampshire jurisdiction, or involves property located in or substantially connected to New Hampshire, the notarial officer must have no actual knowledge that the act of making the statement or signing the record is prohibited by the laws of the jurisdiction in which the individual is physically located.

Once a document is signed in accordance with the process outlined above, the individual must mail the signed copy of the documents to the notarial officer for certification and execution with the notarial officer’s signature and the official stamp or seal.  The official date and time of the notarization, however, is when the notarial officer witnesses the signature via the electronic device(s) that provide the required audio and visual presence.

Importantly, Emergency Order #11 does not require a New Hampshire commissioned notarial officer to perform a notarization:  with respect to an electronic record; for an individual, not in the presence of the notarial officer; or using a technology that the notarial officer has not selected.  Emergency Order #11 also includes other nuances, such as not precluding the invalidation of a record by an aggrieved person under certain circumstances. 

Alternatively, if the whole electronic process is not your thing, then you have the option of using a local bank, some of which are now offering drive-up notary services.  If you have a question about the process of obtaining a notarial officer’s signature or any other aspect of Emergency Order #11, please contact a Devine Millimet attorney at (603) 669-1000.

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