Ohio Legislative Update

OHIO SENATE BILL 263

 

The Ohio legislature recently enacted the Notary Public Modernization Act to streamline the notary public system in Ohio and provide for electronic notarization, effective September 20, 2019.

 

A notary public is entitled to the following fees:

  • Up to five dollars for any notarial act that is not an online notarization;
  • For an online notarization, up to twenty-five dollars.

 

Only one of the above described fees may be charged and may not be calculated on a per signature basis. In addition to the fees authorized above, a notary may charge a reasonable travel fee, as agreed to by the notary and the principal prior to the notarial act. The secretary of state may adopt rules to increase the fees authorized under this section.

 

A notary public may not do any of the following:

  • Perform a notarial act with regard to a record or document executed by the notary;
  • Notarize the notary’s own signature;
  • Take the notary’s own deposition;
  • Perform a notarial act if the notary has a conflict of interest with regard to the transaction in question;
  • Certify that a document is either of the following:
    • An original document;
    • A true copy of another record.

(This does not prohibit a notary from notarizing the signature of a holder of a document on a written statement certifying that the document is a true copy of an original document.)

  • Use a name or initial in signing certificates other than that by which the notary public is commissioned;
  • Sign notarial certificates using a facsimile signature stamp unless the notary public has a physical disability that limits or prohibits the notary’s ability to make a written signature and unless the notary has first submitted written notice to the secretary of state with an example of the facsimile signature stamp;
  • Affix the notary’s signature to a blank form of an affidavit or certificate of acknowledgment and deliver that form to another person with the intent that it be used as an affidavit or acknowledgment;
  • Take the acknowledgment of, or administer an oath or affirmation to, a person who the notary public knows to have been adjudicated mentally incompetent by a court of competent jurisdiction, if the acknowledgment or oath or affirmation necessitates the exercise of a right that has been removed;
  • Notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization;
  • Alter anything in a written instrument after it has been signed by anyone;
  • Amend or alter a notarial certificate after the notarization is complete;
  • Notarize a signature on a document if the document is incomplete or blank;
  • Notarize a signature on a document if it appears that the signer may be unduly influenced or coerced so as to be restricted from or compromised in exercising the person’s own free will when signing the document;
  • Take an acknowledgment of execution in lieu of an oath or affirmation if an oath or affirmation is required; or
  • Determine the validity of a power of attorney document or any other form designating a representative capacity, such as trustee, authorized officer, agent, personal representative, or guardian, unless that notary is an attorney licensed to practice law in Ohio.

 

A notary public must provide a completed notarial certificate for every notarial act the notary public performs.  For an acknowledgment and a jurat, the corresponding notarial certificate must indicate the type of notarization being performed.  If a notarial certificate incorrectly indicates the type of notarization performed, the notary public must provide a correct certificate at no charge to the person signing in question.

 

An acknowledgment certificate must clearly state that no oath or affirmation was administered to the signer with regard to the notarial act.  A jurat certificate must clearly state that an oath or affirmation was administered to the signer with regard to the notarial act.

 

A notary public may not use an acknowledgment certificate with regard to a notarial act in which an oath or affirmation has been administered.  A notary public may not use a jurat certificate with regard to a notarial act in which an oath or affirmation has not been administered.

 

A notarial certificate must include all of the following information:

  • The state and county venue where the notarization is being performed;
  • The wording of the acknowledgment or jurat in question; 
  • The date on which the notarial act was performed;
  • The signature of the notary, exactly as shown on the notary’s commission;
  • The notary’s printed name, displayed below the notary’s signature or inked stamp;
  • The notary’s notarial seal and commission expiration date;
  • If an electronic document was signed in the physical presence of a notary and notarized electronically, or if an online notarization was performed, the certificate must include a statement to that effect.

 

An electronic document that is signed in the physical presence of the notary public with an electronic signature and notarized with an electronic seal is considered an original document.  Unless otherwise provided, a printed copy of a document executed electronically by the parties and acknowledged or appropriately sworn before a notary must be accepted by county auditors, engineers, and recorders for purposes of approval, transfer, and recording to the same extent as any other document that is submitted by an electronic recording method and may not be rejected solely by reason of containing electronic signatures or an electronic notarization, including an online notarization, if that document contains the required certificate.

 

Any notary public may obtain an electronic seal and an electronic signature for the purposes of notarizing documents.  A notary public must comply with the provisions pertaining to the electronic seal and electronic signature.

 

“Appear in person” means being in the same physical location as another person and being close enough to hear, communicate with, and exchange tangible identification credentials with that individual. “Appear in person” also means being in a different location as another person and interacting with that individual by means of live two-way, audio-video communication.

 

“Credential analysis” means a process or service operating according to standards adopted by the secretary of state through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources.

 

“Identity proofing” means a process or service operating according to standards adopted by the secretary of state through which a third person affirms the identity of a natural person through the review of personal information from public and proprietary data sources.

 

“Remote presentation” means transmission to an online notary public through live two- way video and audio conference technology of an image of a government-issued identification credential that is of sufficient quality to enable the online notary public to identify the principal seeking the online notary public’s services and to perform credential analysis.

 

A notary public who has been duly appointed and commissioned, and who is a resident of Ohio, may apply to the secretary of state to be authorized to act as an online notary public during the term of that notary public’s commission. An Ohio resident commissioned as a notary public qualifies to be an online notary public by paying the fee and submitting to the secretary of state an application in the form prescribed by the secretary that demonstrates to the satisfaction of the secretary that the applicant will comply with the standards adopted in rules and that the applicant is otherwise qualified to be an online notary.

 

Before an individual may be authorized to act as an online notary public, that individual must successfully complete a course of instruction approved by the secretary of state and pass an examination based on the course. The content of the course must include notarial rules, procedures, and ethical obligations pertaining to online notarization. The course may be taken in conjunction with the educational program required for a notary public commission.

 

A notary public may perform an online notarization for a principal located outside the territory of the United States only if both of the following conditions are met:

  • The act is not known by the notary public to be prohibited in the jurisdiction in which the principal is physically located at the time of the act; and
  • The record meets any of the following:
    • Is part of, or pertains to, a matter that is to be filed with or is before a court, governmental entity, or other entity located in the territorial jurisdiction of the United States;
    • Involves real or personal property located in the territorial jurisdiction of the United States; or
    • Is part of, or pertains to, a transaction substantially connected with the United States.

 

If an online notarization requires a principal to appear before an online notary public, the principal must appear in person before the notary public and the principal and the notary public must each sign the record with an electronic signature.  In performing an online notarization, a notary public must determine from personal knowledge or satisfactory evidence of identity that the principal appearing before the notary by means of live audio-video communication is the individual that he or she purports to be.

 

A notary public has satisfactory evidence of identity if the notary can identify the individual who appears in person before the notary by means of audio-video communication based on either of the following:

  • All of the following:
    • Remote presentation by the principal of a government-issued identification credential, including a passport or driver’s license, that contains the signature and photograph of the principal;
    • Credential analysis of the identification credentials provided; and
    • Identity proofing of the principal.
  • Verification by one or more credible witnesses who appear in person before the notary and who can be identified by either personal knowledge or all of the following:
    • Presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and photograph of the witness;
    • Credential analysis of the identification credentials provided;
    • Identity proofing of the witness.

Sign up for news + updates

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

Diane Jenkins

Attorney

Recommended Resources