[WSBARP] More Explanation about Remote Notary Acknowledgements

Thu Feb 1 08:25:08 PST 2018

Dwight:
You say below:
WA law [65.08.030<https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fapp.leg.wa.gov%2FRCW%2Fdefault.aspx%3Fcite%3D65.08.030&data=02%7C01%7C%7C2d99036b2f9d49dfad8d08d568f61ae8%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636530328806118580&sdata=9z9WEaThplQMnKySHJHrh9FaYu7neLaXX5RJ11zpUoU%3D&reserved=0>] says a defective acknowledgement certificate does not invalidate the document and it still constitutes notice to a third party of the conveyance. However, note that WA law does waive the requirement for an acknowledgement.

Is your statement based solely on the statute?  Or is there case law on this?  What are the circumstances under which you can get away with an unacknowledged deed?

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com>
   rodharmon at msn.com<mailto:rodharmon at msn.com>

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bickel, Dwight
Sent: Wednesday, January 31, 2018 1:51 PM
To: REALPROP at yahoogroups.com; WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] More Explanation about Remote Notary Acknowledgements

First, a short answer to Kary Krismer’s question:

My earlier message references Virginia because that is one of the states with a statute that authorizes a notary to witness acknowledgements using remote computer technology. That statute does not limit its use to Virginia transactions. My comments therefore apply to any state that has a revised notary public law that authorizes a notary to witness an acknowledgement without being face-to-face.

Is “remote acknowledgement” authorized?

A remote acknowledgement is statutorily authorized by notary public laws in Virginia, Montana, Texas and Nevada, although the Texas and Nevada laws do not become effective until July 1, 2018.  Montana authorizes remote acknowledgement only if the transaction is in Montana. I have not reviewed the Texas notary law, but that may be the source of authority relied upon by Stewart in WA because it corporate headquarters is in Texas.

Definitions may be helpful:

·         An “acknowledgement” is the act/words of the signing person that they signed the document. WA law requires this to be done for a conveyance.

·         A “certificate of acknowledgement” is the statement on the document itself that the Notary Public signs stating that he/she witnessed an acknowledgement.

·         An “electronic acknowledgement” refers to an acknowledgement certificate that is signed by the notary public on a computer, similar to electronic signatures. The WA statute change mentioned previously will allow the electronic notary certificate after July 1, 2018. An electronic acknowledgement could be after witnessing an acknowledgement in person [“personally appeared before me”], as the WA notary law clearly requires, or it could be after a remote acknowledgement where the signing person is not in the same place.

·         A “remote acknowledgement” means the notary witnesses an acknowledgement while physically anywhere else in the world where the notary is licensed by that place. The notary would require a computer [or maybe even a smart phone]. The notary certificate could be on a paper document, or done electronically. The signing person could be anywhere  in the world with a computer [or maybe even a smart phone]. A remote notary could witness an acknowledgement of a person in the adjoining room, and it still is not “personally appeared before me.”

·         “Standards” means that the state authorizes a remote acknowledgement if a notary has a specific license, if the notary uses specific software, if the notary follows specific document retention and transmission protocols, and if the notary follows specific methods to reduce the risk of forgery, incompetency and duress.

Is a “remote acknowledgement” a valid acknowledgement for a WA conveyance?

The premises of the logic for use of a remote acknowledgment for a WA transaction are that if the notary is licensed in the other state to witness an acknowledgment using a remote computer connection, then the Virginia acknowledgement certificate will be valid for WA transactions.

My concerns include that the Virginia licensed notary is not satisfying WA law requiring an acknowledgement, unless the signing person “personally appears before” the notary in Virginia, as defined in WA laws for a compliant acknowledgement. Prior to July 1st, WA law [SB 5065<https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Flawfilesext.leg.wa.gov%2Fbiennium%2F2017-18%2FPdf%2FBills%2FSenate%2520Passed%2520Legislature%2F5081-S.PL.pdf&data=02%7C01%7C%7C2d99036b2f9d49dfad8d08d568f61ae8%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636530328806118580&sdata=e%2FY09MtYVnQOUQk1Dj5zWBq7o4xNwUwo4F4cXUxwgtY%3D&reserved=0>] does not authorize an electronic acknowledgement certificate either. Even after that new notary law, WA still will not recognize a remote acknowledgement until a future law is passed. WA is awaiting promulgation of standards before it changes the requirements for an acknowledgement.

WA law [65.08.030<https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fapp.leg.wa.gov%2FRCW%2Fdefault.aspx%3Fcite%3D65.08.030&data=02%7C01%7C%7C2d99036b2f9d49dfad8d08d568f61ae8%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636530328806118580&sdata=9z9WEaThplQMnKySHJHrh9FaYu7neLaXX5RJ11zpUoU%3D&reserved=0>] says a defective acknowledgement certificate does not invalidate the document and it still constitutes notice to a third party of the conveyance. However, note that WA law does waive the requirement for an acknowledgement. If the remote acknowledgment is not a compliant acknowledgement, it may not matter that Virginia says its notaries there may witness a remote acknowledgement using unknown software and unknown methods to reduce the risk of forgery, incompetency and duress.

As we go into the future, we do so watching in the rear view mirror<https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.goodreads.com%2Fquotes%2F618118-we-look-at-the-present-through-a-rear-view-mirror&data=02%7C01%7C%7C2d99036b2f9d49dfad8d08d568f61ae8%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636530328806118580&sdata=sFX9lm3P1yoL7UfarCNh4EeEEobK3WZFRIvmt2tV8AI%3D&reserved=0>. If I was your lawyer, I would advise you not to use a remote acknowledgement until the WA Legislature accepts that future technology. It will.

Dwight A. Bickel
Regional Counsel
Fidelity National Title Group
701 - 5th Avenue, Suite 2700
Seattle, WA 98104
Phone: (206) 370-3189
E-mail: Dwight.Bickel at fntg.com<mailto:Dwight.Bickel at fntg.com>

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