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District of Columbia Legislative Update

DISTRICT OF COLUMBIA L22-0189   The Council of the District of Columbia recently enacted the Revised Uniform Law on Notarial Acts Act of 2018 (“Act”), effective December 4, 2018.   “Acknowledgment” means a declaration by an individual that states the individual has signed a record for the purposes stated in the record and, if the […]

DISTRICT OF COLUMBIA L22-0189

 

The Council of the District of Columbia recently enacted the Revised Uniform Law on Notarial Acts Act of 2018 (“Act”), effective December 4, 2018.

 

“Acknowledgment” means a declaration by an individual that states the individual has signed a record for the purposes stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.

 

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

 

“Electronic notary” means an individual who has received an endorsement from the Mayor of the District of Columbia to perform a notarial act with respect to electronic records.

 

"Electronic signature" means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.

 

“Foreign state” means a government other than the United States, a state, or a federally recognized Indian tribe.

 

"In a representative capacity" means acting as:

  • An authorized officer, agent, partner, trustee, or other representative for a person other than an individual;
  • A public officer, personal representative, guardian, or other representative, in the capacity stated in a record;
  • An agent or attorney-in-fact for a principal; or
  • An authorized representative of another in any other capacity.

 

"Notarial act" means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of the District. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, noting a protest of a negotiable instrument, taking and certifying the acknowledgment or proof of powers of attorney, mortgages, deeds, other instruments of writing, and taking affidavits to be used before any court, judge, or officer within the District.

 

“Notarial officer” or “officer” means a notary public or other individual authorized to perform a notarial act.

 

“Notary public” means an individual commissioned by the:

  • Mayor to perform notarial acts in the District; or
  • Commissioning authority of the federal government, a state, or a federally recognized Indian tribe.

 

“Notarial sealer” means:

  • A physical device capable of affixing to or embossing on a tangible record an official seal;
  • An electronic device or process capable of attaching to or logically associating with an electronic record an official seal; or
  • A stamping device.

 

"Official seal" means a physical image affixed to or embossed on a tangible record or an electronic image securely attached directly to or logically associated with an electronic record.

 

"Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

 

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

 

"Sign" means, with present intent to authenticate or adopt a record, to:

  • Execute or adopt a tangible symbol; or
  • Attach to or logically associate with the record an electronic symbol, sound, or process.

 

"Signature" means a tangible symbol or an electronic signature that evidences the signing of a record.

 

"State" means a state of the United States of America, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

 

“Temper-evident technologies” means technology that is designed to allow a person inspecting an electronic record to determine whether there has been any tampering with the integrity of a certificate of notarial act logically associated with a record or with the attachment or association of the notarial act with that electronic record.

 

"Verification on oath or affirmation" means a declaration, made by an individual under oath or by affirmation before a notarial officer, that a statement in a record is true.

 

A notarial officer may perform a notarial act authorized by the Act or by the law of the District other than this Act.  A notarial officer may not perform a notarial act if:

  • The record is incomplete or blank
  • The notarial officer or the officer’s spouse is a party to the record; or
  • The notarial officer or the officer’s spouse has a direct beneficial interest in the record.

 

A notarial act performed in violation of the above restrictions is voidable.

 

A notarial officer who takes an acknowledgment of a record must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual.

 

A notarial officer who takes a verification of a statement on oath or affirmation must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual.

 

A notarial officer who witnesses or attests to a signature must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and signing the record has the identity claimed.

 

A notarial officer who certifies or attests a copy of a record or an item that was copied must determine that the copy is a full, true, and accurate transcription or reproduction of the record or item.

 

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.

 

A notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.

 

A notarial officer has satisfactory evidence of the identity of an individual appearing before the notarial officer if the notarial officer can identify the individual by means of:

  • Current government-issued identification that is:
    • A passport, driver's license, or government issued non-driver identification card; or
    • Another form of government identification issued to an individual, which contains the signature or a photograph of the individual and is satisfactory to the officer; or
  • A verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify based on a current passport, driver’s license, or government-issued nondriver identification card.

 

A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual.

 

A notarial officer may refuse to perform a notarial act if the notarial officer is not satisfied that:

  • The individual executing the record is competent or has the capacity to execute the record; or
  • The individual's signature is knowingly and voluntarily made.

 

A notarial officer may refuse to perform a notarial act unless refusal is prohibited by law other than this Act.

 

If an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual's name on the record. The notarial officer must insert "Signature affixed by (name of other individual) at the direction of (name of individual)" or words of similar meaning.

 

A notarial act may be performed in the District by:

  • A notary public of the District;
  • A judge, clerk, or deputy clerk of a court of the District; or
  • Any other individual authorized to perform the specific act by the law of the District.

 

The signature and title of an individual performing a notarial act in the District are prima facie evidence that the signature is genuine and that the individual holds the designated title.

 

A notarial act performed in another state has the same effect under the law of the District as if performed by a notarial officer of the District, if the act performed in that state is performed by:

  • A notary public of that state;
  • A judge, clerk, or deputy clerk of a court of that state; or
  • Any other individual authorized by the law of that state to perform the notarial act.

 

Notarial acts must be evidenced by a certificate which must:

  • Be executed contemporaneously with the performance of the notarial act;
  • Be dated;
  • Identify the jurisdiction in which the notarial act is performed;
  • Contain the notarial officer’s title of office; and
  • If the notarial officer is a notary public:
    • Be signed by the notary public in the same manner as on file with the Mayor; and
    • Indicate the date of expiration, if any, of the notary’s commission.

 

If a notarial act regarding a tangible record is performed by a notary public, an official seal must be affixed to or embossed on the certificate.  If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information required above, an official seal may be affixed to or embossed on the certificate.

 

If a notarial act regarding an electronic record is performed by an electronic notary and the certificate contains the information required above, an official seal must be attached to or logically associated with the certificate.

 

A certificate of a notarial act is sufficient if it meets the above requirements and it:

  • Is in a short form as set forth below;
  • Is in a form otherwise permitted by the law of the District;
  • Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
  • Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided by this Act or law of the District other than this Act.

 

If a notarial act is performed regarding a tangible record, a certificate must be part of, or securely attached directly to, the record.  If a notarial act is performed regarding an electronic record, the certificate must be affixed to, or logically associated with, the electronic record.  If the Mayor has issued rules establishing standards for attaching, affixing, or logically associating the certificate, the process must conform to the standards.

 

The following short form certificates of notarial acts are sufficient for the purposes indicated, if completed with the information required:

 

For an acknowledgment in an individual capacity:

 

District of Columbia

 

This record was acknowledged before me on ________(Date) by ______________(Name of individual).

 

______________________

Signature of notarial officer

 

 

[Seal]

 

 

______________________

Title of office

 

[My commission expires:_____________]

 

For an acknowledgment in a representative capacity:

 

District of Columbia

 

This record was acknowledged before me on ________(Date) by ______________(Name of individual) as (type of authority, such as officer or trustee) or (name of party on behalf of whom record was executed).

 

______________________

Signature of notarial officer

 

 

[Seal]

 

 

______________________

Title of office

 

[My commission expires:_____________]

 

For a verification on oath or affirmation:

 

District of Columbia

 

Signed and sworn to (or affirmed) before me on ___________ by _______________ (Name of individual making statement).

 

______________________

Signature of notarial officer

 

 

[Seal]

 

 

______________________

Title of office

 

[My commission expires:_____________]

 

For witness or attesting a signature:

 

District of Columbia

 

Signed (or attested) before me on ___________ by _______________ (Name of individual making statement).

 

______________________

Signature of notarial officer

 

 

[Seal]

 

 

______________________

Title of office

 

[My commission expires:_____________]

 

The official seal of a notary public must:

  • Include the notary public's name, the words "District of Columbia," the commission expiration date, and other information required by the Mayor; and
  • Be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated;

 

An individual who holds a commission as a notary public may apply for an endorsement as an electronic notary.  A notary public may not perform notarial acts with respect to electronic records unless the notary public has received an endorsement as an electronic notary.

 

An electronic notary may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the electronic notary has not selected.

 

Before a notary public holding an endorsement as an electronic notary performs the notary’s initial notarial act with respect to an electronic record, a notary public must complete a training course provided by the Mayor, take the oath prescribed for civil officers in the District, identify the tamper-evident technologies the electronic notary intends to use, and file an exemplar of the electronic notary’s electronic signature and official seal.  If the Mayor has established standards for approval of technology, such technology must conform to the standards. If the technology conforms to the standards, the Mayor must approve the use of the technology.

 

This Act does not affect the validity of a notarial act performed before December 4, 2018.

 

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Diane Jenkins

Director, National Mortgage Compliance Practice Group, AsurityDocs Of Counsel, Sandler Law Group

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