On April 14, 2020, New Jersey Governor Phil Murphy signed into law A-3903/S-2336, which, subject to certain requirements, temporarily allows remote notarizations during the Public Health Emergency and State of Emergency declared by Governor Murphy in Executive Order 103 on March 9, 2020. The law takes effect immediately.
More specifically, A-3903/S-2336 authorizes either: (1) a notary public (“Notary”); or (2) an officer authorized to take oaths, affirmations and affidavits under R.S.41:2-1 or to take acknowledgements under R.S.46:14-6.1 (“Officer”), to perform notarial acts using “communication technology”1 for a remotely located individual if the notary public or officer:
(1) has personal knowledge of the identity of the individual appearing before the notary public or officer, which is based upon dealings with the individual sufficient to provide reasonable certainty that the individual has the identity claimed; (2) has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public or officer; or (3) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing.
Additionally, the Notary or Officer must be reasonably able to confirm that a record before the Notary or Officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature, and must create an audio-visual recording of the performance of the notarial act, a copy of which must be retained for a minimum of ten (10) years.
For individuals remotely located outside of the United States, A-3903/S-2336 specifies that:
(1) the record (i) 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 (ii) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and
(2) 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.
However, remote notarizations under A-3903/S-2336 are not authorized for the following records:
(1) the Uniform Commercial Code, N.J.S.12A:1-101 et seq., other than N.J.S.12A:1-107, N.J.S.12A:1-206, the provisions of the “Uniform Commercial Code – Sales,” chapter 2 of Title 12A of the New Jersey Statutes, and the provisions of the “Uniform Commercial Code – Leases,” chapter 2A of Title 12A of the New Jersey Statutes; or
(2) a statute, regulation or other rule of law governing adoption, divorce or other matters of family law.
Further, A-3903/S-2336 authorizes the New Jersey State Treasurer to adopt rules necessary to implement the provisions of this law, which may include: (1) the means of performing a notarial act involving a remotely located individual using communication technology; (2) standards for communication technology and identity proofing; and (3) standards for the retention of an audio-visual recording created. However, before adopting, amending, or repealing any rule, the State Treasurer must consider remote notarization standards promulgated by national standard-setting organizations such as the Mortgage Industry Standards Maintenance Organization and the recommendations of the National Association of Secretaries of State.
As such, while remote notarizations are temporarily available under New Jersey law during the COVID-19 emergency, practitioners must be aware of specific requirements under the law before performing remote notarial acts.
1 “Communication technology” is defined as an electronic device or process that allows a Notary or Officer and a remotely located individual to communicate with each other simultaneously by sight and sound.