DC B22-0324 | NNA
Law

DC B22-0324

Notary Law Update: DC B22-0324

State: Washington DC

Summary:

The District of Columbia enacts the Revised Uniform Law on Notarial Acts (RULONA), bringing in numerous new law changes.

Signed:  October 15, 2018

Effective:  December 04, 2018

Chapter: Act No. A22-0471

Affects:

Creates as yet uncodified sections in, amends Sections 2-1831.02, 15-501(a), and 47-2853 of and repeals Sections 1-1216, 1-1217, and 42-141 through 42-148 of the District of Columbia Code.

Changes:

Definitions

  1. Adds new definitions for the following terms used in the Act: “acknowledgment,” “electronic,” “electronic signature,” “in a representative capacity,” “notarial act,” “notarial officer,” “notary public,” “notarial sealer,” “official seal,” “person,” “record,” “sign,” “signature,” “state,” “tamper-evident technologies,” and “verification on oath or affirmation.”
  2. Clarifies that a “notarial officer” means a Notary Public or other individual authorized to perform a notarial act while a “Notary Public” means an individual commissioned to perform a notarial act.
  3. Clarifies that “official seal” means the physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record, and that “notarial sealer” means the tool which creates the physical or electronic image.
  4. Uses the term “record” to refer to either information that is inscribed on a tangible medium (e.g., a paper document) or that is stored in an electronic or other medium and is retrievable in perceivable form.

Qualifications and Commissioning

  1. Prescribes that a Notary commission applicant must: (a) be at least 18 years of age; (b) be a citizen or legal resident of the U.S.; (c) be a resident of or have a place of employment or practice in the District; (d) not be disqualified to receive a commission by any of the grounds under Section 23; and (f) meet any other qualifications prescribed by rules by the Mayor.
  2. Requires an applicant for a commission to do the following before being issued a commission: (a) take an oath of office; (b) complete a training class provided by the Mayor; (c) file the Notary’s signature and deposit an impression of the Notary’s official seal with the Mayor; and (d) indicate, on a form provided by the Mayor, the language or languages in which the applicant intends to perform notarial acts (note: the applicant is required to read and write in the language in which the applicant intends to perform notarial acts).
  3. Retains the requirement for a $2,000 “assurance” (surety bond or functional equivalent) and provides that the surety or issuing entity of the Notary’s $2,000 assurance must give 30-days’ notice to the Mayor before canceling the assurance and notify the Mayor within 30 days of making a payment to a claimant.
  4. Requires a Notary to have a valid assurance on file with the District in order to perform notarial acts in the District.
  5. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
  6. Requires upon the death, resignation, or removal from office of a Notary, the Notary’s records, including all the official papers, to be deposited with the Mayor.

Mandatory Training

  1. Requires an applicant for a commission as a Notary in the District who does not already hold a commission from the Mayor to satisfactorily complete the training provided by the Mayor.
  2. Requires the Mayor to establish courses of study for Notaries and applicants for endorsement as electronic Notaries that cover laws, rules, procedures, and ethics relevant to notarial acts.

Appearance and Identification of Signer; Signature of Person Unable to Sign

  1. 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 must personally appear before the notarial officer at the time of notarization.
  2. States that a notarial officer has personal knowledge of the identity of a signer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  3. States that a notarial officer has satisfactory evidence of the identity of an individual if the individual (a) presents a passport, driver’s license or government-issued non-driver ID card that current; (b) presents another form of current government ID that contains the individual’s signature or photograph and that is satisfactory to the notarial officer; or (c) brings a credible witness personally known to the individual who presents a passport, driver’s license or government-issued non-driver ID card that current and who verifies under oath or affirmation that the witness knows the individual.
  4. Permits a notarial officer to require an individual to provide additional information or identification credentials to assure the officer that the individual has the identity claimed.
  5. Permits an individual who is physically unable to sign a record to direct an individual other than the notarial officer to sign the individual’s name on the record and requires the notarial officer to insert the following or substantially similar words, “Signature affixed by (insert name of other individual) at the direction of (insert name of individual).”

Authority to Refuse to Perform a Notarial Act

  1. Permits a notarial officer to 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.
  2. Permits a notarial officer to refuse to perform a notarial act unless refusal is prohibited by a law other than the new law.

Fees for Notarial Acts

  1. Allows a Notary to charge fees for performing notarial acts as established by the Mayor by rule issued pursuant to Section 32.
  2. Prohibits a Notary who is exempted from the payment of the application fee pursuant to Section 20(b) from collecting a fee.
  3. Allows a Notary public to charge, upon agreement of the person to be charged, an amount not to exceed the actual and reasonable expense of traveling to a place where a notarial act is to be performed if it is not the usual place where the Notary public performs notarial acts.
  4. Requires traveling expenses to be in writing, itemized and separate from the fee for the notarial act.
  5. Allows a Notary to waive a scheduled fee or charge an amount less than the scheduled fee.
  6. Prohibits a notarial officer other than a Notary Public from charging a fee for performing notarial acts.

Recognition of Authority to Perform Notarial Acts

  1. Authorizes a notarial act to be performed in the District by: (a) a Notary of the District; (b) a judge, clerk or deputy clerk of a court of the District and (c) any other individual authorized by the law of the District to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act in the District are prima facie evidence that the signature is genuine and that the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  2. Recognizes the notarial acts performed by the following officers of another state as having the same effect under District law as if performed by a District notarial officer: (a) a Notary of that state; (b) a judge, clerk or deputy clerk of a court of that state and (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 are prima facie evidence that the signature is genuine and that the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  3. Recognizes the notarial acts performed by the following officers of a federally-recognized American Indian tribe as having the same effect under District law as if performed by a District notarial officer: (a) a Notary of that tribe; (b) a judge, clerk, or deputy clerk of a court of the tribe; and (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 are prima facie evidence that the signature is genuine and the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  4. Recognizes the notarial acts performed by the following officers under federal law as having the same effect under District law as if performed by a District notarial officer: (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 notarial officer by the United States Department of State for performing notarial acts overseas; and (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 the signature and title of a notarial officer described in sections (a) and (b) and (c) conclusively establish the authority of the notarial 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, a notarial act has the same effect under District law as if performed by a notarial officer of the District.
  6. Provides 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.
  7. Provides that the signature and official stamp of an individual holding an office described are prima facie evidence that the signature is genuine and the individual holds the designated title.
  8. Provides that an apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
  9. 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.

Notarial Certificates and Official Seal

  1. Requires a notarial act to be evidenced by a certificate of the notarial act.
  2. Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act.
  3. Requires a notarial certificate to include (a) the date; (b) the jurisdiction in which the notarial act is performed; (c) the title of the notarial officer; (d) if the notarial officer is a Notary, the date of expiration of the Notary’s commission; and (e) if the notarial officer is a Notary, be signed by a Notary with the Notary’s signature in the same manner as on file with the Mayor.
  4. Requires a Notary to affix or emboss the Notary’s official seal on the notarial certificate of a tangible record.
  5. Permits, but does not require, a notarial officer other than a Notary Public to affix or emboss an official seal on the notarial certificate of a tangible record if the certificate contains the signature of the officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
  6. Requires a Notary to attach or logically associate an official seal on a notarial certificate on an electronic record.
  7. Clarifies that the text of a notarial certificate is sufficient if it is in a short form set forth in Section 16, is in a form otherwise permitted by District law, is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed, or meets the requirements of Sections 5, 6 and 7 (stating requirements for certain notarial acts, and requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence).
  8. Provides that by signing a notarial certificate, a notarial officer certifies he or she has complied with Sections 4, 5, and 6 (requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence).
  9. Prohibits a notarial officer from signing a notarial certificate until the notarial act has been performed.
  10. Requires a notarial certificate to be part of, or securely attached directly to, a tangible record, and affixed to or logically associated with electronic record according to any standards established by the Mayor if standards have been published.
  11. Prescribes short form certificates for all authorized notarial acts.
  12. Prescribes the following elements for the Notary’s official seal: (a) the Notary’s name, exactly stated on the commission; (b) the words “District of Columbia”; (c) the commission expiration date; and (d) other information required by the Mayor (the new law requires the Mayor to issue rules regarding the size and form of the seal).
  13. Requires the official seal to be capable of being copied together with the record to which it is affixed or attach or with which it is logically associated (that is, on an electronic record).
  14. Clarifies that a Notary is responsible for the security of the Notary’s notarial sealer and may not allow another person to use it to perform a notarial act.
  15. Requires a Notary or Notary’s personal representative to notify promptly the Mayor if the Notary’s stamping device is lost, stolen, damaged, or otherwise incapable of affixing a legible image.

Journal

  1. Requires a Notary to keep a journal of notarial acts for all notarial acts the Notary performs.
  2. Permits the journal maintained by a Notary to be kept on a tangible medium or electronic format.
  3. Requires a journal kept on a tangible medium to be a permanent, bound register with numbered pages and a journal kept in electronic format to be in a permanent, tamper-evident electronic format complying with the rules of the Mayor.
  4. Allows a Notary to maintain a separate journal for tangible and electronic records.
  5. Requires a Notary to record a journal entry contemporaneously with the performance of the notarial act.
  6. Prescribes the following entries for each journal record: (a) the date and time of the notarial act; (b) a description of the record, if any; (c) the type of notarial act; (d) the full name and address of each individual for whom a notarial act is performed; and (e) the signature or electronic signature of each individual for whom the notarial act is performed; (f) a brief description of the method of identification and, if a credential is presented, the type of credential presented, if any, used to identify the individual, and its date of issuance and expiration; and (g) the fee for the notarial act, if any.
  7. Requires a Notary to promptly notify the Mayor if the Notary’s journal is lost or stolen.
  8. Requires a Notary on resignation from, or revocation or suspension of, the Notary’s commission to transmit the journal to the Mayor.
  9. 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 the journal to the Mayor.

Notarization of Electronic Records

  1. Allows a Notary to apply to the Mayor for an endorsement as an electronic Notary and prohibits a Notary from performing notarial acts with respect to electronic records without an endorsement.
  2. Requires that any technology used by an electronic records Notary Public to perform a notarization on an electronic record must be tamper-evident.
  3. Permits an electronic records Notary Public to select one or more tamper-evident technologies to perform notarial acts on electronic records.
  4. Prohibits any person from requiring an electronic records Notary Public to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
  5. Prior to performing the Notary’s first notarial act on an electronic record, a Notary holding an endorsement as an electronic Notary must complete a training course provided by the Mayor, take the oath prescribed for civil officers in the District, identify the tamper-evident technologies the electronic Notary intends to use, and file an exemplar of the electronic Notary’s electronic signature and official seal.
  6. Clarifies that any technology the electronic records Notary Public intends to use to perform notarial acts on electronic records must comply with any standards established by the Mayor if the Mayor has established standards.
  7. Clarifies that if the Mayor has established standards for approval of technology, the technology must conform to the standards; and further clarifies that the Mayor shall approve the technology if it complies with the standards.
  8. Requires the Mayor to maintain an electronic database of Notaries Public through which a person may verify the authority of a Notary to perform notarial acts and which indicates whether a Notary has an electronic Notary endorsement to use in performing notarial acts on electronic records.

Prohibited Acts; Advertising Requirements; Grounds for Administrative Action Against the Commission of a Notary

  1. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse is a party to or named in the record that is to be notarized.
  2. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse has a direct beneficial interest in the record.
  3. Prohibits a Notary from performing a notarial act with respect to a record that is blank or incomplete.
  4. Declares that a notarial act performed by a notarial officer under #1, #2 and #3 above is voidable.
  5. States that a commission to perform notarial acts does not allow an individual to (a) assist persons in drafting legal records, give legal advice or otherwise practice law; (b) act as an immigration consultant or expert on immigration matters; (c) represent a person in a judicial or administrative proceeding relating to immigration to the U.S. or U.S. citizenship; or (d) receive compensation for performing the activities in (a) through (c).
  6. Prohibits a Notary from engaging in false or deceptive advertising.
  7. Prohibits a Notary, other than an attorney licensed to practice law, to use the term “notario” or “notario publico.”
  8. Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act, except as otherwise allowed by law. 
  9. Prohibits a Notary, other than an attorney licensed to practice law in the District, from advertising or representing that the Notary may assist persons in drafting legal records, give legal advice, or otherwise practice law.
  10. Requires a Notary who is not an attorney and who in any manner advertises or represents that the Notary offers notarial services, whether orally or in a record, including broadcast or print media, and the Internet, to include the following statement or an alternative statement issued pursuant to rules by the Mayor 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 the District. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.”
  11. Provides that if the form of advertisement or representation is not broadcast and print media, or the Internet, and does not permit the inclusion of the prescribed statement above due to size, the statement must be prominently displayed or provided at the place of performance of the notarial act before the act is performed.
  12. Prohibits a Notary from charging a higher fee than permitted in rules issued by the Mayor.
  13. Permits the Mayor to deny, refuse to renew, revoke, suspend, or impose a condition on a commission as notary (a) failure to comply with the act; (b) a fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a Notary; (c) a conviction of an applicant or Notary of any felony or a crime involving fraud, dishonesty, or deceit, including fraud, forgery, deceptive labeling, counterfeiting, false personation, perjury, false statements, tampering with physical evidence, or theft previously known as larceny, larceny by trick, larceny by trust, embezzlement, or false pretenses; (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 the act, rules of the Mayor 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 rule of the Mayor regarding a Notary; (h) denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state; and (i) failure of the Notary to maintain an assurance (surety bond or functional equivalent).
  14. Provides that an applicant or a Notary is entitled to timely notice and hearing before the Office of Administrative Hearings pursuant to section 6 (b-20) of the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002.
  15. Clarifies that an administrative action taken against the commission of a Notary does not prevent an aggrieved person from seeking and obtaining other remedies provided by law, whether criminal or civil.

Administrative Rules

  1. Requires the Mayor to adopt rules to implement the Act.
  2. Stipulates that rules issued regarding the performance of notarial acts with respect to electronic records shall not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification.
  3. Requires the Mayor to issue rules regarding the size and form of the seal.

Miscellaneous

  1. Clarifies that except as provided in Section 4(c), the failure of a notarial officer to perform the duties or meet the requirements specified in the new law does not invalidate a notarial act performed by the officer.
  2. Provides that the validity of a notarial act under the new chapter 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 upon other law.
  3. Provides that the new law does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.
  4. Clarifies that the Act does not affect the validity and effect of a notarial act performed before the effective date of the Act under a law repealed by the Act.
  5. Clarifies that in applying and construing the new law, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
  6. Clarifies that the new law modifies, limits and supersedes the federal E-SIGN Act, but does not modify, limit or supersede Section 101(c) of E-SIGN or authorize electronic delivery of any of the notices described in Section 103(b) of E-SIGN.
  7. Provides that a Notary commission in effect on the effective date of the new law continues until its date of expiration.
  8. Provides that a Notary who applies to renew a commission on or after the effective date of the new law must comply with the requirements for commissioning in the new law.
  9. Provides that a Notary, in performing notarial acts after the effective date of the new law, must comply with the new law.
  10. Makes conforming changes to other statutes that refer to the prior Notary statutes.

Repeals

  1. Repeals the current Uniform Law on Notarial Acts (DC Code Sections 42-141 et seq.)
  2. Repeals DC Code Sections 1-1201 through 1-1217.
Analysis:

The District of Columbia enacts the Revised Uniform Law on Notarial Acts. Like most RULONA enactments, the District tailored B 22-0324 to its own needs. Since District Notaries must use an embosser as a seal, the operative term used is “official seal” and “notarial sealer” instead of the RULONA terms “official stamp” and “stamping device.” The new law adds identification credential requirements, authorizes Notaries to refuse to perform notarial acts if the Notary is not satisfied that the signer is mentally competent or is signing the record voluntarily, and allows Notaries to perform notarizations on electronic records. It is not entirely clear whether the “endorsement” a Notary must obtain to perform notarizations on electronic records is an adjunct to the underlying Notary commission or an entirely new commission. While the approval of this “endorsement” is not called a separate commission, nevertheless, a Notary who obtains approval must take a separate oath of office and training course. The Mayor must issue rules to implement the new law, and these rules must deal with the size and format of the official seal as well as any other matters the Mayor deems necessary.

Read the bill text.

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