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Law

AZ Senate Bill 1115

Notary Law Update: AZ Senate Bill 1115

State: Arizona

Summary:
Arizona enacts the Revised Uniform Law on Notarial Acts (RULONA), strengthening Arizona’s Notary Public statutes.

Signed:  March 18, 2021

Effective:  June 30, 2022

Chapter: 66

Affects:
Adds, amends, and repeals the following Sections of the Arizona Revised Statutes:
  • Adds Sections 41-252, 41-253, 41-254, 41-255, 41-256, 41-257, 41-258, 41-259, 41-260, 41-261, 41-262, 41-263, 41-264, 41-265, 41-266, 41-267, 41-268, 41-269, 41-270, 41-271, 41-272, 41-273, 41-274, 41-275, 41-276 and 41-277.
  • Amends and renumbers Sections 41-311 as Section 41-251.
  • Amends Sections 41-317, 41-319, 41-320, 41-323, 41-324, 41-327, 41-332, and 44-7011.
  • Repeals Sections 41-312, 41-313, 41-315, 41-321, 41-322, 41-328, 41-329, 41-330.
  • Repeals electronic notarization provisions in ARS 41-351 and 41-352.
  • Repeals the remote online notarization provisions in ARS 41-371-41-380 (but replaces them with the provisions for notarizations for remotely located individuals in the new law).
Changes:

Definitions

  1. Adds definitions of “electronic,” “electronic signature,” “identity proofing,” “in a representative capacity,” “notarial officer,” “official stamp,” “outside the United States,” “person,” “record,” “remotely located individual,” “sign,” “signature,” “stamping device,” “state,” and “verification on oath or affirmation.”
  2. Amends the definition of “acknowledgment,” “notarial act” or “notarization,” and “notary public” or “notary.”

Notary Commissions

  1. Adds as a qualification of a Notary commission that the applicant is not disqualified to receive a commission under new Section 41-271.
  2. Requires an applicant for a Notary commission to be a resident of Arizona state for income tax purposes and claim his or her Arizona residence as the primary residence on state and federal tax returns, but no longer gives such an applicant the option instead to be registered to vote in Arizona.
  3. No longer disqualifies an applicant from receiving a Notary commission if the applicant ever has been convicted of a felony unless civil rights have been restored but not if it was a conviction for a lesser offense involving moral turpitude or of a nature that is incompatible with the duties of a Notary.
  4. Adds grounds, as specified, for denying, refusing to renew, revoking, suspending or conditioning a commission of a Notary.
  5. Requires an applicant for a Notary commission or a renewal commission, or a Notary with a suspended commission to pass an examination if required by the Secretary of State.
  6. Provides that if the Secretary of State requires applicants for a Notary commission and Notaries with suspended commissions to pass an examination, the Secretary or an entity approved by the Secretary may offer a course of study to applicants.
  7. Clarifies that a Notary commission does not allow an individual to act as an immigration consultant.
  8. Requires the surety of the Notary’s bond (assurance) to notify the Secretary of State not later than 30 days after making a payment to a claimant under the bond (assurance).

Notarial Acts

  1. Authorizes Notaries to perform signature witnessings.
  2. Authorizes Notaries to perform protests.
  3. Authorizes a Notary to certify a paper printout of an electronic record is a true and accurate copy of the electronic record.

Standards for Notarial Acts

  1. Adds to the list of IDs that are acceptable for a real estate conveyance or financing notarization an ID that is acceptable to the US Department of Homeland Security.
  2. Provides that a notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  3. Adds to the existing inmate identification card issued by the State Department of Corrections that a notarial officer may accept for an inmate in custody of the state Department of Corrections, an inmate identification card issued by the federal bureau of prisons if the inmate is in federal custody.
  4. Adds to the documentary ID that a notarial officer may accept under existing law a form of unexpired government identification issued by the United States, a state, or a tribal government to an individual that contains the signature or a photograph and physical description of the individual and that is satisfactory to the notarial officer. (Note: the existing provisions requiring the physical description to include the individual’s height, weight, hair color, and color of eyes is repealed.)
  5. Provides that in addition to the documentary ID allowed for the purposes of a real estate conveyance or financing under existing law, a notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by means of an unexpired identification card that is deemed acceptable by the United States Department of Homeland Security to establish the individual's legal presence in the United States and that is accompanied by supporting documents as required by the United States Department of Homeland Security.
  6. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the individual's identity.
  7. Provides that a notarial officer may refuse to perform a notarial act if the officer is not satisfied that (a) the individual executing the record is competent or has the capacity to execute the record or (b) the individual's signature is knowingly and voluntarily made.
  8. Clarifies that a notarial officer may refuse to perform a notarial act unless refusal is prohibited by any law other than the Revised Uniform Law on Notarial Acts (ARS Title 41, Chapter 2 Article 1).
  9. Clarifies that a notarial officer who takes an acknowledgment shall determine, from personal knowledge or satisfactory evidence of identity, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual.
  10. Clarifies that a notarial officer who takes a verification of a statement on oath or affirmation shall determine both of the following: (a) from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual; and (b) that the record that contains the statement verified is complete to the best of the officer's knowledge.
  11. Clarifies that a notarial officer 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.
  12. Clarifies that a notarial officer who witnesses or attests to a signature shall determine, from personal knowledge or satisfactory evidence of the identity, that the individual appearing before the officer and signing the record has the identity claimed.
  13. Provides that except as required under ARS 41-319, a notarial officer may not certify or attest a copy of a public record of Arizona. (Note: ARS 41-319 requires a Notary Public to certify a copy of a journal entry that is a public record.)
  14. Clarifies that a notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters set forth in ARS 47-3505, Subsection B.
  15. Authorizes an individual who is unable to physically sign a record to direct another individual other than the notarial officer to sign the individual’s name on the record, provided the notarial officer adds the statement, “signature affixed by (name of other individual) at the direction of (name of individual)" or words of similar import” near the signature.
  16. Provides that if the notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.
  17. Clarifies that if a translator is involved in the notarial act under ARS 41-253, Subsection F, the translator must personally appear before the Notary Public.
  18. 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 such a notarial act is voidable.
  19. Provides that a commission as a Notary Public 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; and (d) receive compensation for performing any of the activities listed above.
  20. Provides that if a Notary Public, other than an attorney licensed to practice law in Arizona, performs an activity listed in in the paragraph above or otherwise performs the unauthorized practice of immigration and nationality law as defined in section 12-2701, the Secretary of State shall impose a civil penalty of not more than $1,000 and permanently revoke the Notary's commission.
  21. Prohibits a Notary public from engaging in false or deceptive advertising.
  22. Prohibits a Notary Public, other than an attorney who is licensed to practice law in Arizona from using the term "notario" or "notario publico".
  23. Provides that a Notary Public, other than an attorney who is licensed to practice law in Arizona, may not advertise or represent that the Notary may assist persons in drafting legal records, give legal advice, or otherwise practice law.
  24. Provides that if a Notary who is not an attorney licensed to practice law in Arizona 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, the Notary must include the following statement, or an alternative 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".
  25. Clarifies that if the form of advertisement or representation a Notary uses is not broadcast media, print media or the internet and does not allow inclusion of the statement required above because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.
  26. Provides that if a Notary violates the provisions above related to misrepresentation as an attorney or posting the prescribed notice in an advertisement that the Notary is not an attorney is guilty of a class 6 felony and the secretary of state shall permanently revoke the notary public's commission.
  27. Provides that except as otherwise allowed by law, a Notary may not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the Notary.

Journal

  1. Retains the requirement that Notaries keep a journal and that a Notary must use a paper journal for paper notarial acts.
  2. Authorizes a Notary to keep either a paper journal or one or more electronic journals to chronicle all notarial acts performed on electronic records.
  3. Requires a Notary to record in the journal both a description of the document and type of notarial act.
  4. Requires the signature of the signer to be recorded in a journal only if a paper journal is used.
  5. No longer requires a Notary to record the serial or identification number of an ID presented as satisfactory evidence of identity in the journal.
  6. Provides that except for notarial acts performed for remotely located individuals, a Notary may continue to follow the provision of ARS 41-319.C (related to making journal entries for individuals within a six-month period.

Remote Online Notarization (RON)

  1. Defines “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.”
  2. Clarifies that if a Notary who performs a RON does not identify the remotely located individual by personal knowledge or the oath or affirmation of a credible witness, two forms of identity proofing must be used.

Notarization of Electronic Records

  1. Provides that a Notary may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records.
  2. Prohibits a person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology that the Notary has not selected.
  3. Requires a Notary to notify the Secretary of State that the Notary will be performing notarial acts on electronic records and identify the technology the Notary intends to use before performing the first such notarial act.
  4. Provides that if the Secretary of State has established standards for approval of technology pursuant to ARS 41-275, the technology must conform to the standards.
  5. Provides that If the technology the Notary intends to use conforms to the standards of the Secretary of State, the Secretary shall approve the use of the technology.

Official Stamp and Notarial Certificate

  1. Requires the official stamp of a Notary to include the Notary's name, the Notary's commission expiration date, the words "Notary Public," the name of the county in which the Notary is commissioned, the Arizona great seal, and any other information required by the Secretary of State, but no longer requires the Notary's identification number to appear in the seal.
  2. Clarifies that the electronic image of an official stamp created by an electronic stamping device must be legible when reproduced together with the record with which it is logically associated.
  3. Prohibits a Notary from affixing or attaching the Notary's official stamp over the Notary's signature or over any other signature on the record that is the subject of the notarial act.
  4. Clarifies that an official stamp of a Notary is an official seal of office for the purposes of the laws of Arizona.
  5. Retains the current provision requiring a vendor to receive a copy of the Notary’s commission before making a stamping device and to keep the copy for 4 years, and provides that a person who violates this provision is guilty of a Class 6 felony.
  6. Retains the current provision allowing only one stamping device for paper (tangible) notarizations, and the use of an embosser as an adjunct device for use with the official stamp, and further provides that anyone who violates this provision is guilty of a Class 3 misdemeanor.
  7. Clarifies that an embosser is not an official seal of office for purposes of the laws of Arizona.
  8. Provides that a Notary is responsible for the security of the Notary's stamping device.
  9. Provides that on resignation from, or the revocation or expiration of, the Notary's commission, the Notary shall disable any electronic stamping device by destroying, 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 any electronic stamping device shall render it unusable by destroying, erasing, or securing it against use in a manner that renders it unusable.
  11. 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 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 notarial officer’s title; (e) if the notarial officer is a Notary, and indicate the Notary’s commission expiration date; and (f) be worded and completed using only letters, characters and a language that are read, written and understood by the Notary.
  12. Adopts the Revised Uniform Law on Notarial Acts short-form notarial certificates.
  13. Provides a short-form certificate for certifying that a paper printout of an electronic record is a true and correct copy of the electronic record.
  14. Clarifies that by executing a certificate of a notarial act, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in ARS 41-252, 41-253, and 41-254.
  15. 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.
  16. Provides that if a notarial act is performed regarding a tangible record, a certificate must be part of or securely attached to the record.
  17. Provides that if the notarial certificate is attached to the record using a separate sheet of paper, the attachment must contain a description of the record that includes at a minimum the title or type of record, the date of the record, the number of pages of the record and any additional signers of the record other than those named in the notarial certificate.
  18. Provides that if a notarial act is performed regarding an electronic record, the certificate must be affixed to or logically associated with the electronic record.
  19. Provides that if the Secretary of State has established standards pursuant to ARS 41-275 for attaching, affixing, or logically associating the certificate, the process must conform to the standards.

Recognition of Notarial Acts

  1. Provides that notarial act may be performed in Arizona by (a) a Notary Public of Arizona; (b) a judge, a clerk or deputy clerk of a court of Arizona; (c) an individual licensed to practice law in Arizona; and (d) any other individual who is authorized to perform the specific act by Arizona law, and further provides that the signature and title of an individual performing a notarial act in Arizona are prima facie evidence that the signature is genuine and that the individual holds the designated title and that the signature and title of a notarial officer under (a), (b), or (c) conclusively establish the authority of the officer to perform the notarial act.
  2. Provides that a notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of Arizona if the act performed in that state is performed by: (a) a Notary Public of that state, (b) a judge, a clerk or a deputy clerk of a court of that state, or (c) any other individual authorized by the law of that state to perform the notarial act, and further provides that the signature and title of an individual performing a notarial act in another state is prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a Notary Public, a judge, a clerk or a deputy clerk of court of the other state conclusively establish the authority of the officer to perform the notarial act.
  3. Provides that a notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect under the laws of Arizona as if performed by a notarial officer of Arizona if the act performed in the jurisdiction of the tribe is performed by (a) a Notary Public authorized by the tribe; (b) a judge, a clerk or a deputy clerk of a court of that tribe; or (c) any other individual authorized by the law of the tribe to perform the notarial act, and further provides that the signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe is prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a Notary Public, a judge, a clerk or a deputy clerk of court of the tribe conclusively establish the authority of the officer to perform the notarial act.
  4. Provides that a notarial act performed under federal law has the same effect under the laws of Arizona as if performed by a notarial officer of Arizona, if the act performed under federal law is performed by (a) a judge, clerk or deputy clerk of a court; (b) an individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law; (c) an individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas; or (d) any other individual authorized by federal law to perform the notarial act, and further provides that the signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of an officer described in (a), (b) or (c) conclusively establish the authority of the officer to perform the notarial act.
  5. Provides that if a notarial act is performed under the authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of Arizona as though performed by a notarial officer of Arizona.
  6. 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 established conclusively, and that the signature and official seal of the individual are prima facie evidence that the signature is genuine and the individual holds the designated title.
  7. Provides that an apostille in the form prescribed by the Hague Apostille Convention and issued by a foreign state party to the Convention conclusively establishes that the signature of a notarial officer is genuine and that the officer holds the indicated office.
  8. Provides that a consular authentication issued by an individual designated by the United States 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. Except for ARS 41-252.B (voiding a notarial act performed by a Notary with a disqualifying interest) and ARS 41-320.B (voiding a notarial act when the Notary has a disqualifying interest in notarizing as a stockholder, director, officer, or employee), provides that the failure of a notarial officer to perform a duty or meet a requirement specified in the Revised Uniform Law on Notarial Acts does not invalidate a notarial act performed by the notarial officer.
  2. Provides that the validity of a notarial act under the Revised Uniform Law on Notarial Acts 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 laws of Arizona other than the RULONA or the laws of the United States.
  3. Clarifies that the validity provisions do not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

Miscellaneous Provisions

  1. Authorizes the Secretary of State to adopt rules to implement the RULONA.
  2. Requires the Secretary of State to maintain a database of Notaries Public through which a person may verify the authority of a Notary to perform notarial acts and may indicate whether a Notary has notified the Secretary that the Notary will be performing notarial acts on electronic records or for remotely located individuals.
  3. Clarifies that a Notary commission in effect on the effective date of the RULONA continues until its date of expiration.
  4. Provides that a Notary who applies to renew a commission on or after June 30, 2022, is subject to and shall comply with the RULONA.
  5. Clarifies that a Notary, in performing notarial acts after June 30, 2022, must comply with RULONA.
  6. Provides that authorization issued by the Secretary of State to perform electronic notarization or remote online notarizations in effect on June 30, 2022.
  7. Provides that a Notary who notifies the Secretary of State that the Notary will be performing notarial acts with respect to electronic records or with respect to remotely located individuals on or after June 30, 2022, is subject to and shall comply with the RULONA.
  8. Provides that a notarial act performed by a Notary who acts as a stockholder, director, officer, or employee with a disqualifying interest is voidable.
  9. Makes technical, non-substantive changes.

Repealed Provisions

  1. Repeals the definitions of “copy certification,” “incomplete document,” “jurat,” “oath” or “affirmation,” “personal knowledge,” “satisfactory evidence of identity,”
  2. Repeals a prior provision which stated that the Secretary of State shall not accept any bond that was issued more than sixty days before or more than sixty days after the date on which the Secretary commissions a Notary.
  3. Repeals the prior provisions related to posting a prescribed notice in foreign language advertisements in ARS 41-329 and replaces them with the provisions of ARS 41-273.D.
  4. Repeals the prior provisions related to refusal or revocation of a commission in ARS 41-330 and replaces them with ARS 41-271.
  5. Repeals electronic notarization provisions in ARS 41-351 and 41-352.
  6. Repeals the remote online notarization provisions in ARS 41-371 through 41-380 (but replaces them with the provisions for notarizations for remotely located individuals in the new law).
Analysis:

Arizona becomes the most recent state to enact the Revised Uniform Law on Notarial Acts. The enactment embraces most of the salient and standard provisions, including the newly adopted provisions on notarizations for remotely located individuals. Enacting the remote provisions is unusual because Arizona only recently enacted remote provisions. These prior remote provisions are repealed effective June 30, 2022, but are operative until that time. The new remote provisions do not substantively change the existing provisions and the NNA expects that the current administrative rules adopted by the Secretary of State to implement these provisions will likely not change. Many of the existing statutes were brought over and incorporated into the RULONA enactment. The journal, bond, seal, commissioning, and satisfactory evidence provisions from existing law are largely the same under the new law. The RULONA adds some new provisions, namely, the prohibitions against a Notary practicing law, the ability of a Notary to refuse to perform a notarial act, and the allowance for signers with a physical limitation to direct an individual to sign on their behalf, which will make notarization safer and more effective in Arizona.

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