The COVID-19 pandemic has caused many problems in daily life. One of the biggest changes in our new normal is practicing social distancing and sheltering in place as much as possible to avoid potentially infecting yourself and others. But how do these social distancing guidelines affect transactions that require a notary?

Generally, in order to have a document notarized, the signatory must appear personally in front of the notary and sign the document in the notary’s presence. Clearly, this close contact would contravene the social distancing guidelines. Fortunately, the Pennsylvania Department of State has temporarily and limited suspension of in-person notarial requirements. 

In a Notice released from the Pennsylvania Department of State on March 25, 20202, this temporary and limited suspension of the physical presence requirement was enable for real estate transactions. However, the temporary suspension of in person regulatory requirement varies depending on the type of real estate transaction. For personal real estate transactions, the temporary suspension is granted only for real estate transactions that were already in process before the sheltering in place requirements were enacted. A real estate transaction was already in process if the agreement of sale was completed for residential property and only the mortgage closing needs to take place. For commercial real estate transaction, the temporary suspension is granted for both transactions that were already in process and new transactions that occur during the emergency period. The Department of State noted that “these suspensions for commercial real estate transaction will allow transactions that may be needed to assist in responding to this public health exigency, including possible needs for emergency allocation or transfer of property during this disaster declaration, while also protecting Pennsylvanians and enabling real estate professionals to comply with the Governor’s directive regarding essential vs. non-essential businesses.”

The Notice further implements safeguard requirements for these transactions, including multilayers of identity verification, use of tamper-evident technology and an audio-video recording of the notarial act. 

The Pennsylvania Department of State requires that all notaries who are using audio-visual technology as an alternative to personal appearance must:

1. Become an approved Pennsylvania electronic notary (which is a free application);

2. Use an e-notary solution already approved by the Department that offers remote notarization technology; and

3. Indicate in the notary certificate that the notarial act was performed by means of communication technology. The following statement will satisfy that requirements – “This notarial act involved the use of communication technology.”

Notaries must still execute all notarial acts, including acknowledgments, in accordance with all other requirements of the Revised Uniform Law on Notarial Acts (RULONA).

On April 2, 2020, the Pennsylvania Department of State extended the temporary and limited suspension of the physical presence requirement to estate planning documents. These documents include documents that requirement notarization and those that do not require notarization, but notarization is best practice. Such documents are powers of attorney, self-executing wills, temporary guardianship, advance health care directives/health care powers of attorney, living wills, and standby and temporary guardianship. The same safeguards implemented for real estate transactions are applicable to estate documents. 

If you unsure whether a document that needs to be notarized can be notarized through the above outlined method, please contact an attorney for assistance.