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Law

NH Senate Bill 134

Notary Law Update: NH Senate Bill 134

State: New Hampshire

Summary:
Senate Bill 134 enacts provisions from the Revised Uniform Law on Notarial Acts (RULONA), and especially the provisions related to remote notarization, and the Uniform Real Property Electronic Recording Act (URPERA).

Signed:  August 10, 2021

Effective:  February 06, 2022

Chapter: 206

Affects:
Amends Sections 455:3, 455:11, 456-B:1, 456-B:2, 456-B:8 of, and adds Sections 456-B:6-a, 456-B:8a, 456-B:8-b, 456-B:8-c, 456-B:8-d, 456-B:8-e, 478-A:3 to the New Hampshire Revised Statutes Annotated.

Changes:

Definitions

  1. Defines the new terms of “electronic,” “electronic signature,” “notary public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” and “state.”
  2. Amends the definitions of “notarial act,” “acknowledgment,” “verification upon oath or affirmation,” “in a representative capacity.”
  3. Defines in the chapter on remote notarization the terms “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.”

Notarial Acts, Standards, and Fees

  1. Authorizes a Notary to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.
  2. Broadens the applicability of notarizations performed on a will or estate document by attorneys and paralegals under the supervision of an attorney from March 23, 2020, onward.
  3. Requires 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 appear personally before the notarial officer.
  4. 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 officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  5. Provides that a notarial officer has satisfactory evidence of the identity of an individual for a notarial act if the individual: (a) presents a passport, driver’s license, or government-issued nondriver identification card, which is current and unexpired; (b) presents another form of government identification, which is current and unexpired, contains the signature or a photograph of the individual, and is satisfactory to the officer; or (c) has a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver’s license, or government-issued nondriver identification card, which is current and unexpired, make a verification upon oath or affirmation.
  6. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.
  7. Provides that a Notary is entitled to a fee of $25 per notarial act for a notarial act involving a remotely located individual.
  8. Provides that the failure of a notarial officer to perform a duty or meet a requirement specified in chapter 455 or 456 does not invalidate a notarial act performed by the notarial officer.
  9. Provides that the validity of a notarial act under chapter 455 or 456 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 New Hampshire law other than the new RULONA provisions or law of the United States.
  10. Clarifies that the validity accorded to notarial acts does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

Notarizations for Remotely Located Individuals

  1. Provides that a remotely located individual may comply with the requirement to appear in person before a Notary for a notarial act by using communication technology.
  2. Authorizes a Notary to perform a notarial act for a remotely located individual using communication technology (a) if the Notary has personal knowledge of the individual, (b) if a credible witness appearing before the Notary physically or by means of communication technology takes an oath or affirmation as to the identity of the remotely located individual, or (c) the remotely located individual’s identity is verified through at least two forms of identity proofing.
  3. Authorizes a Notary to perform a notarial act for a remotely located individual using communication technology if the notary is able reasonably 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.
  4. Authorizes a Notary to perform a notarial act for a remotely located individual using communication technology if the notary, or a person acting on behalf of the notary, creates an audio-visual recording of the performance of the notarial act.
  5. Authorizes a Notary to perform a notarial act for a remotely located individual located outside the United States using communication technology 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.
  6. Authorizes a Notary to perform a notarial act for a remotely located individual located outside the United States using communication technology if 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.
  7. Clarifies that the certificate of notarial act and the short-form certificate of notarial act provided in RSA 456-B:8 must indicate that the notarial act was performed using communication technology if the notarial act was for a remotely located individual.
  8. Provides that a short-form certificate of notarial act provided in RSA 456-B:8 for a notarial act subject to this section is sufficient if it: (a) complies with rules adopted under RSA 456-B:6-a  subparagraph VIII(a); or (b) is in the form provided in RSA 456-B:8 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”
  9. Requires a Notary, a guardian, conservator, or agent of a Notary, or a personal representative of a deceased Notary to retain the audio-visual recording for the notarial act involving a remotely located individual or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.
  10. Clarifies that unless a different period is required by rule, the recording must be retained for a period of at least 10 years after the recording is made.
  11. Requires a Notary to notify the Secretary of State that the Notary will be performing notarial acts with respect to remotely located individuals and identify the technologies the Notary intends to use before performing the Notary’s first notarial act for a remotely located individual.
  12. Authorizes the Secretary of State to adopt rules regarding the performance of notarial acts for remotely located individuals and provides the matters the rules may address.
  13. Provides that unless the Secretary of State has adopted a rule establishing standards for identity proofing, a Notary must comply with the credential analysis and authentication provisions of the Standards for Remote Online Notarization (Version 1) adopted by The Mortgage Industry Standards Maintenance Organization on August 28, 2019, and further provides that in doing so the Notary satisfies the requirement of using at least 2 different types of identity proofing when performing a notarial act for a remotely located individual.

Notarizations on Electronic Records

  1. Authorizes a Notary to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records.
  2. Prohibits any 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. Provides that before a Notary performs the Notary’s initial notarial act with respect to an electronic record, the Notary shall notify the Secretary of State that the Notary will be performing notarial acts with respect to electronic records and identify the technology the Notary intends to use.
  4. Provides that if the Secretary of State has established standards for approval of technology for notarizations on electronic records, the technology the Notary uses must conform to the standards.
  5. Provides that if the technology the Notary uses to perform notarial acts on electronic records conforms to the standards, the Secretary of State shall approve the use of the technology.
  6. Authorizes the Secretary of State to adopt rules to implement the new chapter and further clarifies that rules adopted regarding the performance of notarial acts with respect to electronic records may not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification.

Journal

  1. Requires a Notary to maintain a journal in which the Notary chronicles all notarial acts with respect to a remotely located individual under RSA 456-B:6-a.
  2. Requires the Notary to retain the journal for 10 years after the performance of the last notarial act chronicled in the journal.
  3. Authorizes a journal to be created on a tangible medium or in an electronic format.
  4. Provides that if a journal is maintained on a tangible medium, it shall be a permanent, bound register with numbered pages. If the journal is maintained in an electronic format, it shall be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State.
  5. Clarifies that a Notary shall maintain only one journal at a time to chronicle all notarial acts performed regarding tangible records and one or more journals to chronicle all notarial acts performed regarding electronic records.
  6. Requires an entry in a journal to be made contemporaneously with the performance of the notarial act and contain the following information: (a) the date and time of the notarial act; (b) a description of the record, if any, and type of notarial act; (c) the full name and address of each individual for whom the notarial act is performed; (d) if the identity of the individual is based on personal knowledge, a statement to that effect; (e) if the identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of the identification credential; and (f) the fee if any, charged by the Notary.
  7. Provides that if the Notary’s journal is lost, the Notary loses access to the journal, or the journal is stolen, the Notary promptly shall notify the Secretary of State upon discovering the journal is lost, access is lost, or the journal is stolen.
  8. Provides that on resignation from, or the revocation or suspension of, the commission of a Notary, the Notary shall retain the journal for 10 years and inform the Secretary of State where the journal is located.
  9. Provides that instead of retaining a journal for 10 years, a current or former Notary may transmit the journal to a repository approved by the Secretary of State.
  10. Provides that upon the death or adjudication of incompetency of a current or former Notary, the personal representative or guardian of the Notary shall retain the journal for 10 years or transmit the journal to a repository approved by the Secretary of State.

Certificate of Notarial Act and Official Stamp

  1. Adds a short-form notarial certificate for certifying a tangible copy of an electronic record.
  2. Clarifies that a Notary must use an embossed official seal or rubber or electronic official stamp for all notarial acts performed (formerly only required for acknowledgments).
  3. Provides that the electronic or rubber official stamp of a Notary shall (a) Include the information required by RSA 455:3; and (b) be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.
  4. Requires a Notary to be responsible for the security of the Notary’s stamping device and prohibits the Notary from allowing another individual to use the device to perform a notarial act.
  5. Provides that on resignation from, or the revocation or expiration of, the Notary’s commission, or on the expiration of the date set forth in the stamping device, if any, the Notary must disable the stamping device by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable.
  6. 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 the stamping device must render it unusable by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable.
  7. Provides that if a Notary’s stamping device is lost or stolen, the Notary or the Notary’s personal representative or guardian must notify promptly the Secretary of State on discovering that the device is lost or stolen.
  8. Provides that unless the Secretary of State has adopted a rule establishing standards for tamper-evident technology, a Notary must attach or logically associate the Notary’s official stamp to an electronic record by use of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union or similar industry-standard technology.

Other Provisions

  1. Clarifies that related to the recording of a document, a requirement that a document or a signature associated with 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 related to the recording of an electronic document, a physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.
  3. Requires a register of deeds to accept for recording a tangible copy of an electronic document, other than a plat, map, survey, or plat of land as provided in RSA 478:1-a, containing a notarial certificate as satisfying any requirement that a document accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic document.
  4. Clarifies that a notarial certificate in the form provided in RSA 456-B:8, VI, satisfies the requirement of a notarial certificate certifying that a tangible copy of an electronic record is an accurate copy for the purposes of recordation.
  5. Clarifies that RSA 206:11 may not be deemed to allow an electronic will or codicil executed on or after March 23, 2020.
Analysis:

New Hampshire is the latest state (and 31st overall) to enact provisions of the Revised Uniform Law on Notarial Acts. New Hampshire’s enactment includes the provisions for notarizations on electronic records and for remotely located individuals. Senate Bill 134 requires Notaries to keep a journal for remote notarizations and to create an audio-visual recording of the remote notarial act. Unlike several other states that have enacted the RULONA this year, Senate Bill 134 does not require Notaries to keep a journal for all notarial acts, nor does it require the Notary to take an educational course and pass an examination.

Section 456-B:2 takes effect immediately (August 10, 2021) while the remainder of the provisions — and particularly the provisions related to notarial acts for remotely located individuals — takes effect on February 6, 2022. Between now and then, we expect the New Hampshire Secretary of State to adopt rules to implement the new law.

Read Senate Bill 134.

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