Ohio is a relatively new adopter (September 20, 2019) of laws permitting electronic on line notarization. These new laws generated a great deal of excitement when they went into effect on September 20, 2019, creating new licensing, education and requirements for “electronic notarial acts”. There are however, several relatively mundane aspects of the law that will affect the daily work of bankers, lawyers, the real estate industry and other businesses such as wealth management where signature attestation may be required.

Ohio Revised Code Section 147.542 addresses the form and content of notarial certificates. It requires in part that for both an acknowledgment and a jurat[1], the notarial certificate shall indicate the type of notarization being administered. Moreover, if the certificate is incorrect, the notary must provide a correct certificate at no charge.

Under the new law, an acknowledgment certificate must clearly state that no oath or affirmation was administered and a jurat certificate must state that no oath or affirmation was administered. The counterpart to those requirements is that a notary cannot use an acknowledgment certificate when an oath or affirmation was administered and a jurat certificate cannot be used if no oath or affirmation was administered. Section 147.011(A) also states that the failure to administer an oath when required shall result in the notary losing his or her commission for three years.

The certificate must contain the state and county in which the act is being performed, the acknowledgement or jurat language, the date on which the act is being performed, the signature exactly as shown on the notary’s commission,[2] the notary’s printed name displayed below the notary’s signature or inked stamp, the notarial seal and the commission expiration date.

Does this mean that all notarial acts performed within the State of Ohio must comply with the new requirements of Section 147.542? The short answer is “No”. Ohio Revised Code Section 147.55, as amended effective September 20, 2019, provides an alternative. It provides updated statutory short forms of acknowledgment which can be used in lieu of adding the language required by Ohio Revised Code Section 147.542. The new statutory short forms do not contain any language indicating whether they are acknowledgments or jurats or whether an oath or affirmation was administered. The consensus is that despite Section 147.542 adding new requirements and Section 147.55 providing forms without this language, the language of Section 147.55 supersedes the provisions of Section 147.55 because that Section starts as follows: “Notwithstanding Section 147.542 of the Revised Code, the forms of acknowledgment set forth in this section may be used and are sufficient for their respective purposes under any section of the Revised Code. This section goes on to say that “The authorization of the forms in this section does not preclude the use of other forms”. Ohio Revised Code Section 147.551 provides a statutory form of jurat which should also be used unless an alternative form is in compliance with Section 147.542.

Therefore, if you only use the statutory forms, there is no need to comply with the new requirements of identifying the nature of the notarial act and stating whether an affirmation or oath was or was not administered. When presented with a non-statutory form however, the new additional requirements set forth in Section 147.542 must be satisfied.

Another important feature of the new law is that Section §147.59 of the Ohio Revised Code creates a procedure whereby someone suffering from a physical limitation preventing them from signing a document to be notarized may designate an alternative signer.

Also, remember that Ohio Revised Code Section 5101.63 creates a duty to report a situation to the Ohio Department of Job and Family Services if the notary has reasonable cause to believe that an adult is being exploited, neglected or abused or is in a condition that is the result of being exploited, neglected or abused.

Additional questions beyond the scope of this post include the following: Will an improperly notarized mortgage lose its priority as to later instruments? Will a corrected certificate result in a nunc pro tunc reinstatement of priority or will the re-recording of the corrected certificate establish a new date of priority? Will the Ohio legislature provide clarification in the form of further amendments? Stay tuned as we await further developments. Electronic notarization itself will also be the subject of a future posting.

[1] A “jurat” is a statement that the person signing the document has personally appeared before the notary and sworn an oath or otherwise affirmed that the contents of the document are true.

[2] Query what this means for someone who has had a name change.