Obtaining Signatures on Documents in the Time of COVID-19

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Obtaining Signatures on Documents in the Time of COVID-19

In light of the extension of state and local shelter in place orders in most cities and counties in California, most “non-essential” businesses that can work remotely have temporarily closed their offices and implemented work from home policies. Working remotely, however, poses certain challenges to conducting business as usual, including when it comes to getting documents notarized or signed. But, there are solutions.

How Can Documents be Notarized in the Time of COVID?

On March 19, 2020, Governor Gavin Newsom issued an Executive Order instructing “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operation of the federal critical infrastructure sectors as outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.” The link guided individuals to the Cybersecurity & Infrastructure Security Agency of the U.S. Department of Homeland Security (CISA), where on March 19, CISA had posted Guidance on the Essential Critical Infrastructure Workforce. On March 22, the State Public Health Officer issued its own supplemental list of “Essential Critical Infrastructure Workers.” Noticeably absent from either list, was any mention of residential or commercial real estate services, including notary and recording services. At that time, it did not appear that such services were deemed “essential” in California.

On March 28, 2020, however, CISA issued “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response Version 2.0,” which is an updated version of the guidance provided originally. Among other changes are the inclusion of the following categories of workers that are deemed “essential”:

  • Staff at government offices who perform title search, notary, and recording services in support of mortgage and real estate services and transactions.
  • Residential and commercial real estate services, including settlement services.

Moreover, the California Secretary of State website expressly provides that (a) “California notaries public are not prohibited from performing a notarial act during a shelter in place order” and (b) the Secretary of State “will not take action against a notary for having entries in their notary journal during this state of emergency provided the notary otherwise is complying with their notarial duties.”

Some individuals, however, still have practical concerns about how to get documents notarized when offices and conference rooms are no longer available. One option is to use a mobile notary. Mobile notaries travel to a home or other designated location to notarize a document so long as acceptable social distancing practices are followed. However, notaries may not want or be able to travel outside of their home during this crisis.

Unlike many other states, California is one that does not permit remote online notarization (RON), which would allow a notary to be in one location and the signatory another. California does, however, provide that a “certificate of acknowledgment taken in another place shall be sufficient [in California] if it is taken in accordance with the laws of the place where the acknowledgment is made.” (Civil Code § 1189(b)). Accordingly, a resident of California can have a document notarized remotely if the notary complies with the law of a state that does have RON laws. Currently, just under half of the states have enacted permanent RON statutes, with a few more issuing emergency legislation to permit RON during the pandemic.

California has been considering its own RON legislation. In February, the California Online Notary Act of 2020 (AB-2424 ), which is intended to be permanent RON legislation, was introduced in the State Assembly. AB 2424 has not progressed further since then. Around the same time, however, the Remote Online Notarization Act (SB 1322), was introduced directing the Secretary of State to implement rules to adopt the act. If passed, it would take effect immediately, but it would be in place only while there is a state of emergency. At the time of this article, SB 1322 was pending before the Senate Rules Committee.

Additionally, on March 18, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (SECURE Act), was introduced in the U.S. Senate to allow all notaries within the United States to perform RON using certain securitized technology. The SECURE Act is still pending before the Senate Judiciary Committee currently.

As with most things in these COVID-19 days, these or other laws governing notaries public may change. We will continue to track this legislation and provide updates as may be warranted. In the meantime, there are still options available to have documents notarized.

Are Electronic Signatures Enforceable in California?

For many documents, a notarized signature may not be required, but parties may have logistical difficulty while working remotely just to exchange signatures. Thankfully, California has enacted the Uniform Electronic Transactions Act, California Civil Code sections 1633.1-1633.17 (UETA), which allows for the use of “electronic signatures.”

Unlike a scanned or faxed copy of a person’s actual signature, an electronic signature is defined in the UETA as “an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.” Except for certain delineated categories of documents set forth in Section 1633.5, most documents requiring a signature can be signed electronically. The electronic signature will have the same force and effect as a wet signature so long as “the parties to the transaction have agreed to conduct the transaction by electronic means.” Be aware, however, that simply because parties agree to use electronic signatures on one occasion does not bind them to agree to such a process in future transactions.

Certain software that are readily available for many people, even at home, such as Adobe Acrobat, have built in capabilities that allow a person to attach an electronic signature to a document. Alternatively, there are third parties, such as DocuSign, that will license their software for private use for a fee after an initial trial period. There are many other available options as well.

So, where an original signature or a scanned signature is required but cannot be provided due to logistical or other challenges, an electronic signature may be the solution for assisting a transaction to move forward.

While we hope that you are able to complete your transactions as desired, most importantly, stay safe and healthy!

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