Illinois Governor Enacts Remote Notarization Order; Real Estate Transactions to Continue
Chance W. Badertscher • March 30, 2020
Due to the recent stay-at-home order from Illinois Governor J.B. Pritzker, many businesses face uncertainty. Luckily, real estate transactions in the state will continue thanks to several policies led by title companies and financial institutions. The Governor has now enacted an executive order to further assist the real estate industry.
The COVID-19 Executive Order No. 12 was enacted on March 26, 2020. The order allows a Notary Public commissioned under the law of Illinois to perform remote notarization via two-way audio/video communication so long as the Notary Public is physically within the State of Illinois while performing notarial duties and adheres to specific procedures. Section 2 of the order states:
a. The two-way audio-video communication technology must allow for direct, contemporaneous interaction between the individual signing the document ("the signatory") and the witness by sight and sound;b. The two-way audio-video communication technology must be recorded and preserved by the signatory or the signatory's designee for a period of at least three years;c. The signatory must attest to being physically located in Illinois during the two-way audio- video communication;d. The witness must attest to being physically located in Illinois during the two-way audiovideo communication;e. The signatory must affirmatively state on the two-way audio-video communication what document the signatory is signing;f. Each page of the document being witnessed must be shown to the witness on the twoway audio-video communication technology in a means clearly legible to the witness and initialed by the signatory in the presence of the witness;g. The act of signing must be captured sufficiently up close on the two-way audio-video communication for the witness to observe;h. The signatory must transmit by fax or electronic means a legible copy of the entire signed document directly to the witness no later than the day after the document is signed;i. The witness must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via fax or electronic means to the signatory within 24 hours of receipt; andj. If necessary, the witness may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within thirty days from the date of the remote witnessing.
Furthermore, Section 3 of the order states “All provisions of Section 5-120(c) of the Electronic Commerce Security Act, 5 ILCS l 75/5-120(c), which prohibits electronic signatures on certain documents, remain in full effect”. The order will be effective throughout the Governor’s Disaster Proclamation related to COVID-19.
The United States Congress is pushing for a similar bill. The proposed Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (SECURE) would allow all notaries across the country to perform Remote Online Notarization (RON) during the current COVID-19 pandemic. RON will be valid and binding so long as the notary is physically located in the state of the signing party.
The bill was introduced by Senators Kevin Kramer (R-ND) and Mark Warner (D-VA) on March 18, 2020. SECURE is likely to be introduced to the Senate Banking Committee prior to making its way to the Senate floor. Twenty-two states have already passed similar legislation, but SECURE would allow electronic signatures and notarizations for transactions in all jurisdictions under federal law.
The state’s title companies have also implemented policies to ensure real estate transactions can continue. After originally stating that no closings could occur if a county recorder’s office closed, title companies may now file recordings electronically or via courier so long as all parties sign GAP personal undertaking.
Title companies are also offering remote and curbside closings to promote the social distancing protocol. At this time, title companies, financial institutions, law offices and real estate services are considered essential businesses. This means that the real estate industry may continue to operate during the stay-at-home order without interruption.
If you would like to learn more about the current state of the real estate industry or would like to speak to the author, Chance Badertscher can be reached at 847-241-1779 or cbadertscher@lavellelaw.com.
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