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Rule

VT Emergency Remote Notarial Act Rules (2020)

Notary Law Update: VT Emergency Remote Notarial Act Rules (2020)

State: Vermont

Summary:

The Vermont Secretary of State has adopted emergency rules for implementing remote notarial acts in Vermont.

Signed:  March 26, 2020

Effective:  March 26, 2020

Chapter: N/A

Affects:

Remote notarial acts performed by Vermont Notaries Public.

Changes:
  1. Clarifies that the requirement for a personal appearance is satisfied if the Notary and the person executing the signature are in the same physical place or communicating through a secure communication link using the protocols and standards prescribed in the emergency rules.
  2. Clarifies that the emergency rules do not permit electronic notarization or remote online notarization of electronic documents.
  3. Clarifies that all other provisions of the Vermont Uniform Act on Notarial Acts, as set forth in 26 V.S.A. Chapter 103, continue to apply to a remote online notarization.
  4. Defines “act”, “director”, “office”, “remote notarial acts”, “remotely located individual”, “secure communication link” and “signer”.
  5. Provides that Notaries holding a commission to perform notarial acts in Vermont may perform a remote notarial act while physically located in Vermont and only under the following conditions as noted below.
  6. Requires the notarial officer to have personal knowledge of the identity of the individual; have satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notarial officer; or have obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identification.
  7. Requires the notarial officer to reasonably confirm that a record before the notarial officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  8. Requires the notarial act to be performed on a tangible record submitted to the Notary in its original paper format by the remotely located individual; or transmitted electronically to the Notary by the remotely located individual and printed by the Notary prior to the notarial act being evidenced by a certificate.
  9. Requires the document presented to or signed before the Notary to meet the definition of “original” in the Vermont Rules of Evidence.
  10. Requires the notarial officer, or a person acting on behalf of the notarial officer, to creates an audio-visual recording of the performance of the notarial act, to be retained for at least 7 years.
  11. Requires the remote notarial act to comply with all other requirements for notarial acts set forth in 26 V.S.A. Chapter 103.
  12. Requires the executed document including the notarial act to contain the certificate language set forth in the emergency rules.
  13. Requires a remote notarial act to be evidenced by a certificate, which must be hand-written, imprinted by a stamp or embosser, or both, containing the following information: (a) The signature of the Notary executed in the same manner as on file with the office; (b) The legibly printed name of the Notary; (c) The commission number of the Notary; (d) The date of expiration of the Notary’s commission; (e) The title of the Notary, which must be “Notary”; (f) The date the document is signed by the Notary; (g) The date the document is signed by the signer; (h) The jurisdiction, including the county and state, in which the notarial act is performed; and (i) a statement that the notarial act was performed remotely.
  14. Specifies sample certificates for an acknowledgment, acknowledgment in a representative capacity and verification on oath or affirmation that are sufficient for the purposes of performing a remote notarial act.
  15. Provides that the emergency rules take effect when filed with the Secretary of State in accordance with the Administrative Procedures Act, 3 V.S.A. § 800 et seq and shall remain in effect for 180 days thereafter.
Analysis:

When Vermont enacted the Revised Uniform Law on Notarial Acts in 2018, the new law included a provision enabling a Notary to perform remote notarial acts but deferred the effective date of the provision to when the Secretary of State was able to adopt rules to implement it. To date, those rules had not been adopted, until the COVID-19 pandemic hit. Suddenly, many states with stay-at-home orders, including Vermont, realized that the traditional notarial act involving a personal appearance in the physical presence of the Notary was not feasible. To address the present need in Vermont, the Secretary of State has adopted emergency rules that are in effect for six months. They allow a remote notarial act to be performed by a Notary, but the document must be paper and constitute an “original” as defined in the Vermont Rules of Evidence. Rule 1001(3) of the Vermont Rules of Evidence states: “An ‘original’ of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An ‘original’ of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’” Under these emergency rules, the document cannot be an electronic document. An electronic document may be transmitted to the Notary, who then must print it out and notarize the paper document.

Read the emergency rules.

On September 21, 2020, the Secretary of State extended the emergency rules through March 19, 2021. No changes to the rules were made.

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