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VA House Bill 218

Legislation

State: Virginia
Signed: March 02, 2008

Effective: July 01, 2008
Chapter: 117

Summary

House Bill 218 is “clean-up” legislation for last year’s comprehensive Notary and electronic notarization laws. HB 218 removes the requirement for endorsements on an application to become a Notary or electronic Notary; removes the provision that a failure to affix a seal on a paper or electronic document shall not affect the legality or efficacy of the document; specifies notarial officers outside of Virginia who can notarize documents for use in Virginia; clarifies that an improperly notarized document shall not invalidate the underlying document even if it is not in proper form for recordation; requires Notaries performing electronic notarization to keep the required electronic journal for a period of five years from the date of the transaction and adds a new misconduct provision.

Affects

Adds Section 47.1-13.1 to and amends Sections 17.1-223, 47.1-5, 47.1-8, 47.1-9, 47.1-13, 47.1-14, 47.1-16, 47.1-28, and 55-106.2 of the Code of Virginia.

Changes
  1. Clarifies that the application and commissioning procedures for a Notary Public commission apply to an electronic Notary commission and that a Notary must obtain a separate commission to perform eNotarizations.
  2. Authorizes the Secretary of the Commonwealth to accept applications by electronic means.
  3. Repeals the requirement that an application for a Notary or electronic Notary commission must contain an endorsement from a clerk or deputy clerk of a district court, an attorney or assistant attorney for the Commonwealth, the Virginia Attorney General or Assistant Attorney General, or a member of the Virginia General Assembly, and relieves the clerk of the circuit court of the duty of ensuring that an application for a commission contains an endorsement.
  4. Clarifies that a document which appears on its face to have been properly notarized in accordance with Virginia’s Notary laws shall be presumed to have been notarized properly and may be recorded.
  5. Clarifies that a document that is improperly notarized shall not invalidate the underlying document but that such document shall not be in proper form for recordation.
  6. Specifies the notarial officers of other jurisdictions who can perform notarial acts on documents for use in Virginia and clarifies that a document which appears on its face to have been properly notarized by these officers shall be presumed to have been properly notarized in accordance with the laws of the jurisdiction in which the document was notarized.
  7. Repeals the provision that a failure to affix a physical or electronic seal shall not in any way impact the legality or efficacy of the document.
  8. Requires that the electronic journal of all electronic notarizations performed must be kept by the electronic Notary for at least five years from the date of the transaction.
  9. Categorizes as a Class 1 misdemeanor knowingly and willfully misrepresenting on an application for a commission that one has been convicted of a felony in Virginia, in any other state or in the United States.
  10. Makes conforming changes.
Analysis

House Bill 218 seeks to address several important issues raised as a result of the comprehensive Notary and electronic notarization laws enacted in 2007. First, HB 218 repeals a controversial provision stating that while Notaries must have and use a physical and electronic seal to authenticate all notarizations and electronic notarizations, the failure to affix a seal shall not affect the legality of the document. Astonishingly, the Secretary of the Commonwealth interpreted this to mean that Notaries did not have to affix a seal, resulting in widespread confusion about whether Notaries must use a seal. Second, effective July 1, 2008, a 2007 law requires that Notaries performing eNotarizations must keep an electronic journal, but this law did not specify how long Notaries must keep the journal. Now the law requires these e-journals to be kept for five years. Third, the 2007 law did not expressly recognize the notarial acts of notarial officers from other U.S. jurisdictions. HB 218 contains a list of these notarial officers whose notarial acts are recognized in Virginia. Fourth, the 2007 electronic notarization laws were unclear as to whether a separate electronic Notary commission must be obtained to perform eNotarizations. HB 218 resolves this question.

Read House Bill 218.

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