|
THE SENATE |
S.B. NO. |
2275 |
|
THIRTIETH LEGISLATURE, 2020 |
S.D. 2 |
|
|
STATE OF HAWAII |
H.D. 1 |
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
RELATING TO NOTARIAL ACTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to update the laws regarding notaries public to conform to the Revised Uniform Law on Notarial Acts (2018), the Hawaii Uniform Electronic Transactions Act, other state notary laws, and current notary practices.
SECTION 2. Chapter 456, Hawaii Revised Statutes, is amended by adding six new sections to be appropriately designated and to read as follows:
"§456-A Authority to refuse to perform notarial act. (a) A notary public may refuse to perform a notarial act if the notary public is not satisfied that:
(1) The person
executing the document is competent or has the capacity to execute the
document;
(2) The person's
signature is knowingly and voluntarily made; or
(3) The notary
public has proof of the signer's signature and identity or, if the person is a
remotely located individual, satisfactory evidence of the identity under
section 456-B.
(b) A notary public may refuse to perform a
notarial act unless the refusal is prohibited by any provision of law other
than this chapter.
§456-B Notarial act performed for remotely
located individual. (a)
A remotely located individual may comply with any requirement of the
laws of this State to appear personally before or be in the presence of a
notary public at the time of the performance of a notarial act by using communication
technology to appear before a remote online notary public.
(b) A remote online notary public located in this
State may perform a notarial act using communication technology for a remotely
located individual if:
(1) The remote
online notary public:
(A) Has
personal knowledge of the identity of the individual;
(B) Has
satisfactory evidence of the identity of the remotely located individual by
oath or affirmation from a credible witness appearing before the remote online notary
public under this chapter; or
(C) Has
obtained satisfactory evidence of the identity of the remotely located
individual by using at least two different types of identity proofing;
(2) The remote online notary public is
reasonably able to confirm that a document before the remote online notary
public is the same document in which the remotely located individual made a
statement or on which the remotely located individual executed a signature;
(3) The remote online notary public, or a
person acting on behalf of the remote online notary public, creates an audiovisual
recording of the performance of the notarial act; and
(4) For a remotely located individual located outside the United States:
(A) The document:
(i) Is
to be filed with or relates to a matter before a public official or court,
governmental entity, or other entity subject to the jurisdiction of the United
States;
(ii) Involves
property located in the territorial jurisdiction of the United States or
involves a transaction substantially connected with the United States; or
(iii) Involves
a transaction with a bank whose deposits are insured by the Federal Deposit
Insurance Corporation, including such banks located in the Federated States of
Micronesia, Republic of the Marshall Islands, or Republic of Palau; and
(B) The
act of making the statement or signing the record is not prohibited by the
foreign state in which the remotely located individual is located.
(c) If a notarial act is performed under this
section, any certificate of notarial act required by this chapter or other laws
of this State shall indicate that the notarial act was performed using
communication technology.
(d) A form of certificate of notarial act subject
to this section and authorized by the laws of this State, including a certificate
of acknowledgment provided in section 502-41, is sufficient if it:
(1) Complies with rules adopted under this
section; or
(2) Is in the form authorized by the laws of this
State and contains a statement substantially as follows: "This notarial
act involved the use of communication technology".
(e) A remote online notary public, guardian,
conservator, or agent of a remote online notary public, or a personal
representative of a deceased notary public shall retain the audiovisual
recording created under this section or cause the recording to be retained by a
repository designated by or on behalf of the person required to retain the
recording. Unless a different period is
required by rule adopted under this section, the recording shall be retained
for a period of at least ten years after the recording is made.
(f) Before a remote online notary public performs
the remote online notary public's initial notarial act under this section, the remote
online notary public shall notify the attorney general that the remote online
notary public will be performing notarial acts with respect to remotely located
individuals and identify the technologies that the remote online notary public
intends to use. The technology selected
by a remote online notary public to perform notarial acts for remotely located
individuals shall conform to the attorney general's standards developed for
this chapter.
(g) In addition to adopting, amending, or
repealing rules under sections 456-1.5 and 456-8, the attorney general may adopt,
amend, or repeal rules pursuant to chapter 91 regarding the performance of
notarial acts under this section, including:
(1) Prescribing the means of performing a
notarial act involving a remotely located individual using communication
technology;
(2) Establishing standards for communication
technology and identity proofing;
(3) Establishing requirements and procedures to
approve providers of communication technology and the process of identity
proofing; and
(4) Establishing standards and a period of
retention of an audiovisual recording created under this section.
(h) Before adopting, amending, or repealing a
rule governing the performance of a notarial act with respect to a remotely
located individual, the attorney general shall consider:
(1) The most recent standards regarding the
performance of a notarial act with respect to a remotely located individual
promulgated by national standard-setting organizations and the recommendations
of the National Association of Secretaries of State;
(2) The standards, practices, and customs of
other jurisdictions that have laws substantially similar to this section; and
(3) The views of governmental officials and
entities and other interested persons.
(i)
For purposes of this section:
"Communication technology"
means an electronic device or process that:
(1) Allows a remote
online notary public and a remotely located individual to communicate with each
other simultaneously by sight and sound; and
(2) When necessary
and consistent with other applicable laws, facilitates communication with a
remotely located individual who has a vision, hearing, or speech impairment.
"Foreign
state" means a jurisdiction other than the
"Identity
proofing" means a process or service by which a third person provides a remote
online notary public with a means to verify the identity of a remotely located
individual by a review of personal information from public or private data
sources.
"Outside
the
"Remote
online notary public" means an individual commissioned by the attorney
general to perform notarial acts for remotely located individuals.
"Remotely
located individual" means an individual who is not in the physical
presence of the remote online notary public who performs a notarial act under
this section.
§456-C Application; qualifications. (a) A notary public or an
applicant for commission as a notary public may apply to the attorney general
to be commissioned as a remote online notary public in the manner provided by
this section.
(b)
A person qualifies to be commissioned as a remote online notary public by:
(1) Satisfying the qualification requirements
for commission as a notary public under this chapter;
(2) Paying the application fee; and
(3) Submitting to the attorney general an
application in the form prescribed by the attorney general that satisfies to
the attorney general that the applicant is qualified.
(c)
The attorney general may charge a fee for an application submitted under
this section in an amount necessary to administer this section.
(d)
The communication technology selected by a remote online notary public to
perform notarial acts shall conform to the attorney general's standards
developed under this section.
(e)
An individual commissioned as a remote online notary public under this section
shall forthwith file a literal or photostatic copy of their commission with the
clerk of the circuit court of the circuit in which the remote online notary
public resides.
(f)
An individual commissioned as a remote online notary public under this
section is a notary public for purposes of this chapter and is subject to the
requirements, powers, and duties of a notary public under this chapter.
§456-D Notification regarding performance of
notarial act on electronic record; selection of technology; acceptance of
tangible copy of electronic record. (a) A notary
public may select one or more tamper-evident technologies to perform notarial
acts with respect to electronic documents. A person shall not require a notary public to
perform a notarial act with respect to an electronic document with a technology
that the notary public has not selected.
(b)
Before a notary public performs the notary public's initial notarial act
with respect to an electronic document, the notary public shall notify the
attorney general that the notary public will be performing notarial acts with
respect to electronic documents and identify the technology the notary public
intends to use. The
technology selected by a remote online notary public for remote online
notarizations shall conform to the attorney general's standards developed for
this chapter.
(c)
The registrar of conveyances
may accept for recording under chapter 502 a tangible copy of an electronic
document containing a notarial certificate as satisfying any requirement that a
document accepted for recording be an original, if the notary public executing
the notarial certificate certifies that the tangible copy is an accurate copy
of the electronic document.
§456-E Validity of notarial acts. Except
as otherwise provided in section 456-14(b), the failure of a notary
public to perform a duty or meet a requirement specified in this chapter does
not validate or invalidate a notarial act performed by the notary public. The validity of a notarial act under this
chapter does not prevent an aggrieved person from seeking to invalidate the
document or transaction that is the subject of the notarial act or from seeking
other remedies based on the laws of this State other than this chapter or based
on the laws of the United States. This
section does not validate a purported notarial act performed by a person who
does not have the authority to perform notarial acts.
§456-F Relation to federal Electronic Signatures
in Global and National Commerce Act. This chapter modifies, limits, and
supersedes the federal Electronic Signatures in Global and National Commerce
Act, title 15 United States Code section 7001, et seq., but does not modify,
limit, or supersede section 101(c) of that Act, title 15 United States Code
section 7001(c), or authorize electronic delivery of any of the notices
described in section 103(b) of that Act, title 15 United States Code section
7003(b)."
SECTION 3. Section 456-1, Hawaii Revised Statutes, is amended to read as follows:
"§456-1 [Appointment;] Commission;
renewal. (a) The attorney general may, in the attorney
general's discretion, [appoint and] commission such number of notaries
public for the State as the attorney general deems necessary for the public
good and convenience. The term of [office]
commission of a notary public shall be four years from the date of the [notary's]
notary public's commission, unless sooner removed by the attorney
general for cause after [due] the opportunity for hearing;
provided that after [due] the opportunity for hearing the
commission of a notary public may be revoked or the notary public may be
otherwise disciplined by the attorney general in any case where any change
occurs in the [notary's office,] notary public's commission,
occupation, residence, or employment [which] that in the attorney
general's judgment renders the holding of such commission by the notary public
no longer necessary for the public good and convenience. Each notary public shall, upon any
change in the [notary's office,] notary public's commission,
occupation, residence, or employment, forthwith report the same to the attorney
general.
(b)
Each notary public shall be responsible for renewing the notary public's
commission on a timely basis and satisfying the renewal requirements provided
by law. The failure to renew a commission
in a timely manner [may] shall cause the commission to be
forfeited[, if the attorney general finds that the failure was done
knowingly]; provided that a forfeited commission may be restored by the
attorney general within one year after the date of forfeiture upon compliance
with the commission renewal requirements provided by law and upon written
application and payment of all applicable fees."
SECTION
4. Section 456-1.6, Hawaii Revised
Statutes, is amended as follows:
1. Adding twelve new definitions to be
appropriately inserted and to read:
""Acknowledgment"
means a declaration by a person before a notary public that the person has
signed a document for the purpose stated in the document and, if the document
is signed in a representative capacity, that the person signed the document
with proper authority and signed it as the act of the person or entity
identified in the document.
"Document"
means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
"Electronic"
means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
"Electronic
signature" means an electronic symbol, sound, or process attached to or
logically associated with a document and executed or adopted by a person with
the intent to sign the document.
"In
a representative capacity" means acting as:
(1) An authorized
officer, agent, partner, trustee, or other representative for a person other
than an individual;
(2) A public
officer, personal representative, guardian, or other representative, in the
capacity stated in a document;
(3) An agent or
attorney-in-fact for a principal; or
(4) An authorized
representative of another in any other capacity.
"Notarial
act" means an act, whether performed with respect to a tangible or
electronic document, that a notary public may perform under the laws of this
State. "Notarial act" includes
taking an acknowledgment, administering an oath or affirmation, taking a
verification upon oath or affirmation, witnessing or attesting a signature,
certifying or attesting a copy, and noting a protest of a negotiable
instrument.
"Notary
public" means an individual commissioned to perform a notarial act by the
attorney general under this chapter.
"Sign" means, with
present intent to authenticate or adopt a document:
(1) To
execute or adopt a tangible symbol; or
(2) To attach or
logically associate with the document an electronic symbol, sound, or process.
"Signature" means a
tangible symbol or an electronic signature that evidences the signing of a
document.
"Stamping
device" means:
(1) A physical
device capable of stamping or impressing upon a tangible document a notary
seal; or
(2) An electronic
device or process capable of attaching to or logically associating with an
electronic document a notary seal.
"Tamper-evident" means any changes to an
electronic document that display evidence of the change.
"Verification on oath or affirmation" means a declaration, made by a person on oath or affirmation before a notary public, that a statement in a document is true."
2. By amending the definition of "proof of
the signer's signature and identity" to read:
""Proof of the signer's signature
and identity" means [proof evidenced by production of a current
identification card or document issued by the United States, this State, any
other state, or a national government that contains the bearer's photograph and
signature.] satisfactory evidence of the identity of an individual
appearing before the notary public if the notary public can identify the
individual:
(1) By means of:
(A) Having
personal knowledge of the identify of an individual before the officer if the
individual is personally known to the notary public through dealings sufficient
to provide reasonable certainty that the individual has the identity claimed;
(B) A
passport, driver's license, or government‑issued non-driver
identification card that is valid or expired no more than three years before
the performance of the notarial act and contains the signature and photograph
of the individual;
(C) Another
form of government identification issued to an individual that is valid or
expired no more than three years before performance of the notarial act,
contains the signature and photograph of the individual, and is satisfactory to
the notary public; or
(D) By
verification on oath or affirmation of a credible witness personally appearing
before the notary public and known to the notary public or whom the notary
public can identify on the basis of a passport, driver's license, or government‑issued
non-driver identification card that is valid or expired no more than three
years before performance of the notarial act; or
(2) By requiring an individual to provide
additional information or identification credentials necessary to assure the
notary public of the identity of the individual."
3.
By repealing the definition of "personally knowing".
["Personally knowing"
means having an acquaintance, derived from association with the individual,
which establishes the individual's identity with at least a reasonable
certainty."]
SECTION 5. Section 456-2, Hawaii Revised Statutes, is
amended to read as follows:
"§456-2
Qualifications; oath. Every person [appointed] commissioned
as a notary public shall, at the time of the person's [appointment,]
commission, be a resident of the State, possess the other qualifications
required of [public officers] a notary public and be at least
eighteen years of age. Every person [appointed
to that office], before being commissioned as a notary public, shall[,
before entering thereon,] take and subscribe an oath for the faithful
discharge of the person's duties, which oath shall be filed in the department
of the attorney general."
SECTION 6. Section 456-3, Hawaii Revised Statutes, is amended to read as follows:
"§456-3 Seal. Every notary public shall constantly keep [an
engraved seal of office or] a rubber stamp [facsimile] notary seal
which shall clearly show, when [embossed,] stamped[,] or
impressed upon a tangible document[,] or when attached to or
logically associated with an electronic document, only the [notary's]
notary public's name, the [notary's] notary public's
commission number, and the words, "notary public" and "State of Hawaii".
The notary seal shall be capable of
being copied together with the document to which it is stamped, impressed, or
attached, or with which it is logically associated. The notary public shall authenticate all the [notary's]
notary public's official acts, attestations, certificates, and
instruments therewith, and shall always add to an official signature the typed
or printed name of the notary public and a statement showing the date
that the [notary's] notary public's commission expires. Upon resignation, death, expiration of term of
[office] commission without [reappointment,] renewal,
or [removal from] revocation or abandonment of [office,] commission,
the notary public, or in the case of the death of the notary public, the
notary public's personal representative, shall immediately deliver the [notary's]
notary public's seal to the attorney general who shall deface or destroy
the same. [If any notary fails to
comply with this section within ninety days of the date of the notary's
resignation, expiration of term of office without reappointment, or removal
from or abandonment of office or if the notary's personal representative fails
to comply with this section within ninety days of the notary's death, then the
notary public or the notary's personal representative shall forfeit to the
State not more than $200, in the discretion of the court, to be recovered in an
action to be brought by the attorney general on behalf of the State.] If
a notary public has used an electronic stamping device, upon resignation,
death, expiration of term of commission without renewal, or revocation or
abandonment of commission, the notary public, or in the case of the death of
the notary public, the notary public's personal representative, shall disable the
electronic stamping device by destroying, defacing, damaging, erasing, or
securing it against use in a manner that renders it unusable and shall submit a
declaration to the attorney general that the electronic stamping device was
disabled and indicate the date and manner in which the device was disabled."
SECTION 7. Section 456-4, Hawaii Revised Statutes, is amended to read as follows:
"§456-4 Filing
copy of commission; authentication of acts. (a) Each person [appointed and] commissioned
as a notary public under this chapter shall forthwith file a literal or
photostatic copy of the person's commission, an impression of the person's tangible
seal, and a specimen of the person's official signature with the clerk of the
circuit court of the circuit in which the notary public resides. Each person [appointed and] commissioned
as a notary public under this chapter may also, at the person's option,
file the above-named documents with the clerk of any other circuit court.
Thereafter any clerk, when [thereunto] requested, shall certify to the
official character and acts of any such notary public whose commission,
impression of tangible seal, and specimen of official signature [is]
are so filed in the clerk's office. A notary public's electronic seal is not subject
to the requirements of this section.
(b) All documents filed under this section may be maintained in tangible or electronic format."
SECTION 8. Section 456-5, Hawaii Revised Statutes, is amended to read as follows:
"§456-5 Official bond. Each notary public forthwith and before
entering upon the duties of the [notary's office] notary public's commission
shall execute, at the [notary's] notary public's own expense, an
official surety bond which shall be in the sum of $1,000. Each bond shall be approved by a judge of the
circuit court.
The obligee of each bond, or bond
continuation certificate, shall be the State and the condition contained
therein shall be that the notary public will well, truly, and faithfully
perform all the duties of the [notary's office] notary public's commission
which are then or may thereafter be required, prescribed, or defined by law or
by any rule made under the express or implied authority of any statute, and all
duties and acts undertaken, assumed, or performed by the notary public by
virtue or color of the [notary's office.] notary public's commission.
The surety on any such bond, or bond
continuation certificate, shall be a surety company authorized to do
business in the State. After approval
the bond, or bond continuation certificate, shall be deposited and kept
on file in the office of the clerk of the circuit court of the judicial circuit
in which the notary public resides. The
clerk shall keep a book to be called the "bond record", in which the
clerk shall record such data in respect to each of the bonds or bond
continuation certificates deposited and filed in the clerk's office as the
attorney general may direct."
SECTION
9. Section 456-7, Hawaii Revised
Statutes, is amended by amending subsection (a) to read as follows:
"(a) A person commits the offense of unauthorized
practice as a notary public if the person knowingly engages in or offers to
engage in any duties of [the office of] a notary public without first
complying with all of the following:
(1) Being [appointed
and] commissioned as a notary public by the attorney general;
(2) Filing a copy of the person's commission, an impression of the person's seal, and a specimen of the person's official signature with the clerk of the circuit court of the circuit in which the person resides; and
(3) Executing an official surety bond pursuant to section 456-5."
SECTION
10. Section 456-8, Hawaii Revised
Statutes, is amended to read as follows:
"§456-8
Rules. The attorney general,
subject to chapter 91, may prescribe such rules as the attorney general deems
advisable concerning the administration of this chapter, the [appointment]
commission and duties of notaries public, [the duties of other
officers thereunder,] and such measures as may be necessary to prevent the
fraudulent use of a notarized document after placement of the [notary's]
notary public's seal. The rules
shall have the force and effect of law."
SECTION
11. Section 456-9, Hawaii Revised
Statutes, is amended to read as follows:
"§456-9
Fees and administrative fines.
(a) The attorney general shall charge and collect
the following fees for:
(1) Issuing the
original commission, $40; [and]
(2) Renewing the
commission, $40[.]; and
(3) Electronic processing
service fees of up to ten per cent of the amount of the transaction.
These fees may be adjusted, and any other
fees may be established and adjusted, by adopting rules pursuant to chapter 91.
(b) The
court fees for filing a copy of a commission and for each certificate of
authentication shall be specified by the supreme court.
(c) The
attorney general may impose and collect the following administrative fines for
a notary public's failure to:
(1) Maintain an
official seal of [one type, either a single engraved seal or] a single
rubber stamp [facsimile] notary seal, on which shall be inscribed
the name of the notary public, the commission number of the notary public, and
the words "notary public" and "State of Hawaii" only, $20;
(2) Surrender the
notary public's [seal] physical stamping device and certificate
to the attorney general within ninety days of resignation, [removal from office,]
revocation of commission, or the expiration of a term without renewal,
$200;
(3) Disable the notary public's electronic stamping device
within ninety days of resignation, revocation of commission, or the expiration
of a term without renewal, $200;
[(3)] (4)
Authenticate every acknowledgment or jurat with a certificate
that shall be signed and dated by the notary[,] public, include
the printed name and official stamp or seal of the notary[,] public,
and identify the jurisdiction in which the notarial act is performed, [describe
in close proximity to the acknowledgment or jurat the document being notarized,
and state the number of pages and date of the document,] $500;
[(4)] (5)
[Record] Chronicle all of the notary public's [transactions]
notarial acts as prescribed by section 456-15 and applicable rules, $200;
and
[(5) Surrender the
notary public's record books to the attorney general within ninety days of the
end date of the commission, resignation, or removal from office, $500; and]
(6) Notify the attorney general within ten days after loss,
misplacement, or theft of the notary public's [seal, stamp,] stamping
device or any [record book,] journal, inform the appropriate
law enforcement agency in the case of theft, and deliver a copy of the law
enforcement agency's report of the theft to the attorney general, $20.
(d)
The [foregoing] moneys collected by the attorney general pursuant
to this section shall be deposited into the notaries public revolving fund
established by section 456-9.5, except that if that fund is terminated, the [foregoing]
moneys shall thereafter be deposited with the director of finance to the credit
of the general fund.
(e)
All unpaid fees, fines, and forfeitures shall constitute a debt due and
owing to the State."
SECTION 12. Section 456-9.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) There is established in the state treasury the
notaries public revolving fund into which shall be deposited:
(1) All
fees, administrative fines, charges, or other payments received pursuant to
section 456-9;
(2) Penalties
and fines for violations of section 456-3[,] or 456-7[, or
456-16];
(3) Appropriations
made for deposit into the notaries public revolving fund; and
(4) Interest earned on money in the notaries public revolving fund."
SECTION
13. Section 456-14, Hawaii Revised
Statutes, is amended to read as follows:
"§456-14 [Notary] Authority to perform notarial act; notary
public connected with a corporation or trust company[; authority to act]. (a) Except as otherwise provided in subsection
(b):
(1) A notary public
may perform a notarial act authorized by this chapter or by the laws of this
State; and
(2) It shall be lawful
for any notary public, although an officer, employee, shareholder, or director
of a corporation or trust company to take the acknowledgment of any party to
any written instrument executed to or by the corporation or trust company, or
to administer an oath to any shareholder, director, officer, employee, or agent
of the corporation or trust company, or to protest for nonacceptance or
nonpayment of bills of exchange, drafts, checks, notes, and other negotiable
instruments [which] that may be owned or held for collection by
the corporation or trust company[; provided it shall be unlawful for any
notary public to take the acknowledgment of any party to an instrument, or to
protest any negotiable instrument, where the notary is individually a party to
the instrument].
(b) A notary public shall not perform a notarial act with respect to a
document to which the notary public or the notary public's spouse or civil
partner is a party or in which either of them has a direct beneficial interest. A
notarial act performed in violation of this section is voidable.
(c) A
notary public may certify that a tangible copy of an electronic document is an
accurate copy of the electronic document."
SECTION 14. Section 456-15, Hawaii Revised Statutes, is amended to read as follows:
"§456-15 [Record;] Journal; copies as evidence.
[Every notary public shall record at
length in a book of records all acts, protests, depositions, and other things,
by the notary noted or done in the notary's official capacity. For each official act, the notary shall enter
in the book:] (a) A notary public
shall maintain a journal in which the notary public chronicles all notarial
acts that the notary public performs. The notary public shall retain the journal
for ten years after the performance of the last notarial act chronicled in the
journal.
(b) A journal may be created on a tangible medium
or in an electronic format. A notary
public shall maintain only one tangible journal at a time to chronicle all notarial
acts performed regarding tangible documents and one electronic journal at a
time to chronicle all notarial acts performed regarding electronic documents. If the journal is maintained on a tangible
medium, it shall be a permanent, bound register with numbered pages. If the journal is maintained in an electronic
format, it shall be in a permanent, tamper-evident electronic format complying
with the rules of the attorney general.
(c) A notary public having the care and custody
of the journal may cause the same to be photographed, microphotographed,
reproduced on film, or copied to an electronic format. Any device or electronic storage system used
to copy or reproduce the journal shall accurately reflect the information in
the original thereof in all details.
(d) A photograph, microphotograph, reproduction
on film, or electronic copy of a journal shall be deemed to be an original
record for all purposes, including introduction in evidence in all courts or
administrative agencies. A transcript,
exemplification, facsimile, or certified copy thereof, for all purposes recited
in this section, shall be deemed to be a transcript, exemplification,
facsimile, or certified copy of the original record.
(e) An entry in a journal shall be made
contemporaneously with performance of the notarial act and contain the
following information:
(1) The type, date, and time of day of the notarial act;
(2) The title or type and date of the document or proceeding and the nature of the act, transaction, or thing to which the document relates;
(3) The [signature,]
full printed name[,] and address of each person whose signature
is notarized and of each witness[;] and, if the journal is maintained
in a tangible medium, the signature of each such person;
(4) [Other parties
to the instrument; and] If the identity of the person is based on
personal knowledge, a statement to that effect;
(5) [The manner in
which the signer was identified.] If the identity of the person is based
on satisfactory evidence, a brief description of the method of identification
and the identification credential presented, if any, including the identification
number and date of expiration of any identification credentials; and
(6) The fee, if any, charged by the notary
public.
(f) If a notary public's journal is lost or
stolen, the notary public shall promptly notify the attorney general on
discovering that the journal is lost or stolen.
(g) On resignation from, or the expiration,
revocation, or suspension of, a notary public's commission, the notary public
shall retain the notary public's journal in accordance with this section and
inform the attorney general where the journal is located.
(h) On the death or adjudication of incompetency
of a current or former notary public, the notary public's personal
representative or guardian or any other person knowingly in possession of the
journal shall transmit it to the attorney general or a repository approved by
the attorney general.
(i) All copies or certificates granted by the
notary public shall be under the [notary's] notary public's
hand and notary seal and shall be received as evidence of such transactions.
(j) The journals are subject to such reasonable
periodic, special, or other audits or inspections by the department of the
attorney general, within or without this State, as the attorney general
considers necessary or appropriate. An
audit or inspection may be made at any time and without prior notice. The department of the attorney general may
copy, and remove for audit or inspection copies of, all records the department
of the attorney general reasonably considers necessary or appropriate to
conduct the audit or inspection. If any
notary public fails to comply with this section, the notary public shall be
subject to an administrative fine of no less than $50 nor more than $500. All unpaid fees, fines, and forfeitures shall
constitute a debt due and owing to the State."
SECTION 15. Section 456-17, Hawaii Revised Statutes, is amended to read as follows:
"§456-17 Fees. Subject to section 456-18, every notary public
is entitled to demand and receive the following fees:
For noting the protest of mercantile paper, $5;
For each notice and certified copy of protest, $5;
For noting any other protest, $5;
For every notice thereof, and certified copy of protest, $5;
For every deposition, or official certificate, $5;
For the administration of oath, including the certificate of the oath, $5; for affixing the certificate of the oath to every duplicate original instrument beyond four, $2.50;
For taking any acknowledgment, $5
for each party signing; for affixing to every duplicate original beyond one of
any instrument acknowledged before the notary[,] public, the [notary's]
notary public's certificate of the acknowledgment, $2.50 for each person
making the acknowledgment[.]; and
For
any of the foregoing notarial acts performed for a remotely located individual
under section 456-B, other than affixing a notary public's certificate to a
duplicate original, $25."
SECTION
16. Section 456-19, Hawaii Revised
Statutes, is amended to read as follows:
"[[]§456-19[]] Notary
public signing for disabled person. A notary public may sign the name of a
person physically unable to sign or to make a mark on a document presented for
notarization; provided that the notary public is satisfied that the
person has voluntarily given consent for the notary public to sign on
the person's behalf, if the notary public writes, in the presence of the
person: "Signature affixed by
notary public pursuant to section 456-19, Hawaii Revised Statutes."
beneath the signature, and if a doctor's written certificate is provided to the
notary public certifying that the person is unable to physically sign or
make a mark because of the disability, and that the person is capable of communicating
the person's intentions. The certificate
shall be attached to the document."
SECTION
17. Section 456-20, Hawaii Revised
Statutes, is amended by amending its title and subsection (a) to read as
follows:
"[[]§456-20[]] Failure to verify identity and
signature. (a) A person commits the offense of failure to
verify identity [and signature] if the person is a commissioned notary
public and knowingly notarizes a document and[:
(1) If] if
a witness to the signing of the instrument, fails to verify the identity of the
signer by [personally knowing the signer or by comparing the personal
appearance of the signer with satisfactory proof of the signer's identity; or
(2) If not a
witness to the signing of the instrument, fails to verify the identity of the
signer by personally knowing the signer or by comparing the personal appearance
of the signer with satisfactory proof of the signer's identity; or fails to
verify the signature of the signer by recognizing the signature of the signer
by personal familiarity with the signature, or by comparing the signature with
satisfactory proof of the signer's signature.] proof of the signer's
signature and identity, or by obtaining satisfactory evidence of identity under
section 456‑B of a remotely located individual."
SECTION
18. Section 456-21, Hawaii Revised
Statutes, is amended to read as follows:
"[[]§456-21[]] Failure to authenticate with a certification
statement. (a) A person commits the offense of failure to
authenticate with a certification statement if the person is a commissioned
notary public and knowingly [notarizes] performs a notarial act with
respect to a document and fails to include any of the following in the
notary certification:
(1) Date of notarization and signature of the notary public;
(2) The printed name,
date of expiration, and stamp or seal of the notary public; and
(3) Identification of
the jurisdiction in which the notarial act is performed[;
(4) Identification
or description of the document being notarized, placed in close proximity to
the acknowledgment or jurat; and
(5) A statement of the number of pages and
date of the document].
(b) If a notarial act regarding a tangible record
is performed by a notary public, an official stamp shall be stamped, impressed,
or attached on the certificate. If a
notarial act is performed regarding a tangible record by a notary public and
the certificate contains the information specified in this section, an official
stamp shall be affixed to the certificate.
If a notarial act regarding an electronic record is performed by a notary
public and the certificate contains the information specified in this section,
an official stamp shall be attached to or logically associated with the
certificate.
[(b)]
(c) Any person who violates this
section shall be guilty of a misdemeanor and shall be sentenced in accordance
with chapter 706.
[(c)]
(d) A conviction under this
section shall result in the automatic revocation of the notary public's
commission."
SECTION
19. Section 502-42, Hawaii Revised
Statutes, is amended to read as follows:
"§502-42 Certificate, contents. The certificate of acknowledgment shall state
in substance that the person who executed the instrument appeared before the [officer]
notary public granting the certificate and acknowledged or stated that
the person executed the same, and that [such] the person was
personally known to the [officer] notary public granting [such]
the certificate to be the person whose name is subscribed to the
instrument as a party thereto, or was proved to be [such] the party
by the oath or affirmation of a credible witness known to the [officer] notary
public whose name shall be inserted in the certificate[.] or by
other satisfactory evidence of identity under the laws of this State. If the person who executed the instrument
appeared before a notary public as a remotely located individual under section
456-B, then the certificate shall indicate that the notarial act was performed
using communication technology in a manner provided in section 456-B. It shall not be ground for the rejection of
any [such] certificate, or for refusing to accept [such] the
instrument for record or in evidence, that the certificate fails to state that
the person making the acknowledgment stated or acknowledged that the instrument
was executed freely or voluntarily by the person or as the person's free act
and deed."
SECTION
20. Section 502-48, Hawaii Revised
Statutes, is amended to read as follows:
"§502-48 Identification of person making. No acknowledgment of any conveyance or other
instrument, except as provided by this chapter, whereby any real estate is
conveyed or may be affected, shall be taken, unless the person offering to make
the acknowledgment is personally known to the [officer] notary public
taking the acknowledgment to be the person whose name is subscribed to the
conveyance or instrument as a party thereto, or is proved to be such by the
oath or affirmation of a credible witness known to the [officer] notary
public, or by production of a [current] valid identification
card or document issued by the United States, this State, any other state, or a
national government that contains the bearer's photograph and signature[.],
or by obtaining satisfactory evidence of identity of a remotely located
individual under section 456-B."
SECTION 21. Section 502-72, Hawaii Revised Statutes, is amended to read as follows:
"§502-72 Disposition of records. [Except as otherwise provided in respect
to notaries public by section 456-16, the] The books of record so
kept shall every five years, and upon the resignation, death, or removal from
office of such judge or other officer, be deposited with the clerk of the
circuit court of the judicial circuit for and in which the judge or other
officer was or is authorized to act."
SECTION
22. Section 456-16, Hawaii Revised
Statutes, is repealed.
["§456-16
Disposition of records; penalty. The records of each notary public shall be
deposited with the office of the attorney general upon the resignation, death,
expiration of each term of office, or removal from or abandonment of
office. If any notary fails to comply with this section within ninety
days of the date of the resignation, expiration of any term of office, or
removal from or abandonment of office or if the notary's personal
representative fails to comply with this section within ninety days of the
notary's death, then the notary or the notary's personal representative shall
forfeit to the State not less than $50 nor more than $500, in the discretion of
the court, in an action brought by the attorney general on behalf of the State."]
SECTION
23. This Act does not affect rights and
duties that matured, penalties that were incurred, and proceedings that were
begun before its effective date.
SECTION 24. In codifying the new sections added by section 2 and referenced in sections 15, 17, 19, and 20 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION
25. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 26. This Act shall take effect on July 1, 2021.
Report Title:
Notaries Public; Remote Notarization; Electronic Documents
Description:
Updates the laws regarding notaries public to conform to the Revised Uniform Law on Notarial Acts (2018), the Hawaii Uniform Electronic Transactions Act, other state notary laws, and current notary practices. Effective 7/1/2021. (HD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.