North Dakota Legislative Update

NORTH DAKOTA HOUSE BILL 1110

 

The North Dakota legislature recently amended its notarial laws to permit remote online notarizations, effective August 1, 2019. 

 

A notarial officer may now certify that a tangible copy of an electronic record is an accurate copy of the electronic record. 

 

“Communication technology” means an electronic device or process that:

  • Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
  • When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

 

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

 

“Identify proofing” means a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

 

“Remotely located individual” means an individual who is not in the physical presence of the notary public who performs a remote notarial act.

 

A notary public located in North Dakota may perform a notarial act using communication technology for a remotely located individual if:

  • The notary public:
    • Has personal knowledge of the identity of the individual;
    • 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
    • Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing.
  • The notary public is reasonably able to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;
  • The notary public, or a person acting on behalf of the notary public, creates an audiovisual recording of the performance of the notarial act; and
  • For a remotely located individual located outside the United States:
    • The record:
      • 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
      • Involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and
    • 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.

 

In the case of a remote notarial act, the certificate of notarial act and the short-form certificate must indicate the notarial act was performed using communication technology.  A statement substantially as follows will suffice: “This notarial act involved the use of communication technology.” 

 

A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public must retain the audiovisual recording created or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.  Unless a different period is required by rule adopted by the secretary of state, the recording must be retained for a period of at least ten years after the recording is made.

 

Before a notary public performs the notary public’s initial remote notarial act, the notary public must notify the North Dakota secretary of state that the notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use.  If the secretary of state has established standards for approval of communication technology of identity proofing, the communication technology and identity proofing must conform to the standards.

 

A recorder must accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies the tangible copy is an accurate copy of the electronic record.

 

The amendments also include provisions regarding maintaining a record of notarial acts performed.

 

The secretary of state may adopt rules regarding performance of a remote notarial act.

Sign up for news + updates

Expert insights and regulatory updates on RegTech, compliance management, and fair lending.

Diane Jenkins

Attorney

Recommended Resources