Update on Ohio eNotarization

September 25th, 2017

As part of my participation with the Ohio Land Title Association and the Columbus Bar Association’s Real Estate Committee, I was invited to participate at the September 6, 2017, meeting hosted by Ohio State Senators Steve Wilson (7th Dist.) and Matt Huffman (12th Dist.) to discuss legislative action regarding eNotarization. The session organized to discuss legislative action regarding electronic notarization (e-notarization) was also attended by stakeholders from the Ohio State Bar Association, Ohio Recorders’ Association, Ohio Society of Notaries, several representatives’ aids, and private notary companies.

The current legislation is viewed by many, including the Secretary of State’s office, as problematic, largely because of the perception that it failed to create rules for eNotarization in favor of imposing rule making obligations on the Secretary of State. Discussion focused on making sure proposed legislation was as functional and comprehensive as possible. Conversation also addressed identifying existing laws regarding notaries and recording processes that will need to be amended.

Key suggestions for legislative action included:

  • Repealing the existing law to remove any perceived deadline for the secretary of state to engage in rule making.
  • Drafting amendments to current notary laws that potentially provide for consolidating registering, background checks, training, and testing at the state level, whether for e-notaries or all notaries.
  • Drafting amendments to current recording laws for any additional recognition of and presumptions regarding electronic documents.
  • Drafting a new bill that considers and parallels RULONA (Revised Uniform Law on Notarial Acts) as adopted in Texas.

Regarding the latter, discussion included how to identify the security and record retention policy goals without approval of specific vendors and identifying policy goals for the scope of e-notarization (i.e. how far Ohio will go in recognizing notary acts performed in other states versus giving authority to its notaries to perform acts in other states).

There are presently two scenarios being considered acceptable for e-notarization. In the first, the principal can be anywhere but the notary must be in Ohio for Ohio property (i.e. Ohio residents executing documents for out-of-state property appearing before an Ohio notary while the Ohio residents are outside of Ohio). In the second, the principal can always be in Ohio regardless of where the property is located (i.e. non-Ohio residents executing documents while in Ohio before a notary in a different Ohio county regarding out-of-state property).

An alternative approach is the Virginia model, where the principal can be anywhere and the property can be anywhere.

Review of the notary laws and proposed legislation is ongoing. The challenge to produce an effective bill is bolstered by the collaboration between the legislature and industry participants.

Gail C. Hersh, Jr., President, Allodial Title LLC