What is the fundamental issue?
Adoption of electronic signatures in the real estate and lending industries has been picking up in recent years and has accelerated during the COVID-19 pandemic. The law governing electronic signatures, the "Electronic Signatures in Global and National Commerce" or "E-SIGN" Act, became effective for real estate transactions on October 1, 2000, and for record-keeping and filing on March 1, 2001. The law allows the use of electronic signatures, disclosures, and authorizations to replace paper versions. The law does not affect the content of disclosures or any party's rights or responsibilities. It requires no particular technology, but requires all parties to agree on the method for electronically "authenticating" the contracts or documents.
I am a real estate professional. What does this mean for my business?
The replacement of paper documents with electronic ones will produce cost savings for consumers. Anticipated savings include time and funds expended on paper, postage, and storage space for disclosures and authorizations. In addition, this practice will also allow for more efficient and streamlined real estate transactions.
In addition to the E-SIGN Act, NAR supports the use of remote online notarization (RON) legislation that:
- Is technology neutral, focusing on the desired outcome of completing the notarial act rather than the technical means by which it is achieved;
- Advances, enables and supports the interstate adoption and recognition of remote notarization across all U.S. states and territories; and
- Protects consumers personal information in accordance with NAR’s data privacy and security policy.
NAR also urges federal agencies to facilitate the adoption of remote notary and acceptance of electronic signatures and records in all federally related mortgages.
While electronic closings, electronic notaries, remote notaries, and electronic recordings are primarily regulated at the state level, NAR would support federal legislation to authorize every notary in the United State to perform remote online notarization (RON), require tamper-evident technology, and provide for fraud prevention through use of multifactor authentication.
On February 27, 2023, the House passed H.R. 1059, the Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act of 2023. The SECURE Notarization Act would provide for the immediate, nationwide use of remote online notarization technology. The SECURE Notarization Act would also set minimum consumer protection standards but not preempt unique state notarial laws for in person or remote notarizations. By design, the SECURE Notarization Act works in tandem with the Uniform Law Commission’s Revised Uniform Law on Notarial Acts 2018 to provide a framework for the use of remote notarization, much like the E-SIGN Act and Uniform Electronic Transaction Act (UETA) that allow for use of electronic signatures at both the state and federal levels.
Now the SECURE Notarization Act moves to the Senate where NAR will continue to advocate for member interests on electronic signatures.