21st Century Notaries and Land Records: Kentucky Adopts Key Uniform Laws
Written by Jim Worthington on August 12, 2019
Lawyers, real estate professionals, and consumers will see some fundamental changes when Senate Bill 114 takes effect on January 1, 2020. Secretary of State Alison Lundergan Grimes and Senator Morgan McGarvey worked hard to support this law, which adopts the Uniform Law Commission’s 2018 Revised Law on Notarial Acts. Kentucky will be on the leading edge of 21stcentury notary law, joining only eight other states.
Kentucky will also finally join the majority of other states, which allow electronic recording of real property documents like deeds and mortgages. That’s because the Senate Bill adopted parts of the 2004 Uniform Real Property Electronic Recording Act. Recording fees will also be going up, presumably to support the changes required by the introduction of electronic recording.
What does a notary do anyway?
Before diving into the new law, it may help to clarify what a notary public does and doesn’t do. According to Section 3(1) of the new law:
A notarial officer may perform the following notarial acts:
(a) Take acknowledgements;
(b) Administer oaths and affirmations;
(c) Take verifications of statements on oath or affirmation;
(d) Certify that a copy of any document, other than a document is recorded or in the custody of any federal, state, or local governmental agency, office, or court, is a true copy;
(e) Certify depositions of witnesses;
(f) Make or note a protest of a negotiable instrument;
(g) Witness or attest signatures; and
(h) Perform any notarial act authorized by [law].
The most familiar notary function is to acknowledge signatures, which “means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose 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.” That role is so important that it is the very first subsection of the Senate Bill.
The notary public, however, doesn’t approve or disapprove of the transaction. That’s a common misconception. The notary public is just verifying that the person signing the document really is that person. In fact, the notary’s acknowledgment of a signature creates a presumption that the person whose signature appears actually signed it and it can be difficult to overcome that presumption.
The notary public doesn’t practice law, however. I recently had a notary ask a client to see all of the pages of an agreement the client was signing to make sure it was okay to sign. While well-intentioned, that was overreaching by the notary. Advising someone of her rights under an agreement and whether to sign it is inherently the practice of law.
The New Law
Now that we know how important the notary’s role is, let’s look at how it is changing. The new law will allow notaries to acknowledge signatures of people who appear remotely by means of what it calls “communication technology,” like a video feed. The signer can be in Kentucky, another state, or even in a foreign country in some situations. Previously, signers in foreign countries had to go to a U.S. Consulate to have this done.
The law creates a new class of notary publics called online notaries. Even if already commissioned as a notary public, online notaries will have to register separately. Because the signer won’t be able to hand over a driver’s license, online notaries will have to take different steps to verify the signer’s identity. Senate Bill 114 contemplates that the Secretary of State will promulgate regulations. While North Carolina is not one of the states that has adopted the uniform act, it does have e-notaries and the NC Secretary of State’s website lists approved companies to provide these services.
What’s changing for current notaries?
Currently commissioned notaries do not need to do anything. Their commissions will continue until the regular expiration date. New and renewal applicants, including those seeking to be online notaries, will be subject to the new law. One of the law’s detailed provisions is that he Secretary of State will begin issuing commission numbers to notaries and a notary’s certificate will need to include that number. If a notary chooses to use a stamp, the stamp must include that number as well.
Give me a call or stay tuned to this page and other media to keep up with changes in the law that affect the way we practice our profession. It looks like the new notary law will modernize business in the Commonwealth so kudos to Secretary of State Grimes and Senator McGarvey for leading the charge.