The COVID-19 pandemic has certainly changed the world we live in today. For example, there has been an exponential increase in demand for remote closing options in the real estate industry. As a result, remote online notarizations have surged and continue to be in high demand due to their simple and convenient process. With that, it is pertinent to know how to document a valid remote online notarization acknowledgment.
The remote online notarization (“RON”) is a “notarial act performed by an online notary by means of two-way video and audio conference technology that meets the standards adopted by the Secretary of State for such actions, including credential analysis and identify proofing.” Texas Secretary of State, Online Notary Public Educational Information (state.tx.us).
Per the Texas Administrative Code § 87.41, an electronic notarial certificate must state the identity of the principal, the date of the notarization, the state and county in which the notarization was performed, the type of notarial act performed, and that the notarial act was an online notarization. The failure to properly state that a notarization was completed via RON may lead to significant, negative consequences. For example, the Texas Civil Practice and Remedies Code § 16.033(a)(8) provides a two-year cause of action to recover real property or an interest in real property conveyed by an instrument that fails to “show an acknowledgement or jurat that complies with applicable law.”
Although a defective acknowledgement can be cured, the Texas Property Code § 5.030(c) provides that a corrected acknowledgment will still be “subject to the property interest of a creditor or a subsequent purchaser for valuable consideration without notice acquired on or after the date the original instrument was acknowledged, sworn to, or proved and filed for record as required by law and before the correction instrument has been acknowledged, sworn to, or proved and filed for record as required by law.”
Additionally, the Texas Supreme Court has long held that “the registration of deeds or instruments, required by law to be recorded, will not operate as constructive notice, unless they have been acknowledged or proved, as prescribed by law.” Taylor v. Harrison, 47 Tex. 454, 457 (1877). As such, a notarized instrument concerning or conveying real property that does not comply with the applicable law does not provide constructive notice of the instrument to third parties.
Assuming that the failure to identify a notarial act as an online notarization is a ministerial defect, omission, or informality, the Texas Civil Practice and Remedies Code § 16.033(c) provides an exception that such “ministerial defect, omission, or informality” will be considered to have been lawfully recorded and to be notice of the instrument on and after the date it was filed, as long as it was recorded for longer than two years. However, there is still at least a two-year period after recording in which the instrument does not provide constructive notice.
To prevent these issues from over occurring, individuals should include the necessary language indicating whether a notarial act is a traditional notarization or electronic notarization as part of the acknowledgement.
All information provided on Silblawfirm.com (hereinafter "website") is provided for informational purposes only and is not intended to be used for legal advice. Users of this website should not take any actions or refrain from taking any actions based upon content or information on this website. Users of this site should contact a licensed Texas attorney for a full and complete review of their legal issues.