On March 20, 2020, Governor Andrew Cuomo of New York issued Executive Order 202.7 (Order). This Order makes an important directive, effective through April 18, 2020, pursuant to the Governor’s authority during a disaster or emergency, applicable to the real estate and mortgage industries.
The Order states that “any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology” provided that six conditions are met. These conditions are:
- The borrower, if not personally known to the notary, must present valid photo ID during the video conference. Transmitting an ID before or after the conference is not sufficient.
- The video conference must be live, and allow for interaction between the borrower and notary. Pre-recorded videos of the borrower signing are not permitted.
- The borrower who is signing must represent that they are physically in the state of New York.
- The borrower must transmit “by fax or electronic means” a legible copy of the signed document to the Notary on the same day it is signed.
- The Notary may notarize the received copy of the document and send it back to the borrower.
- The Notary may repeat the notarization of the original signed document “as of the date of execution” so long as the Notary receives the original signed document along with the electronically notarized copy within 30 days of execution.
This Order expands remote notarization beyond that of the Remote Online Notarization (RON) to further enable the signing of real estate transfer and lien documentation during the COVID-19 pandemic. So long as the video is live, and all other conditions are met, a wet signature can be scanned or faxed to a notary, a copy notarized, and scanned back to the borrower. The original document can then be notarized at a later date, if the original and notarized copy are received by the notary within 30 days.
This Order will dramatically expand the ability to close real estate and mortgage transactions, however, it may face adoption hurdles with the industry if not embraced by the secondary market.Copyright © 2020 by Ballard Spahr LLP.
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