Best Practices: Impending Mandatory Changes to Florida Notarial Certificates for Acknowledgments and Jurats

Effective January 1, 2020, Florida law requires new language to be used in ALL notarial certificates for acknowledgments and jurats pursuant to House Bill 409 (“HB 409”)/Session Law Chapter 2019-71, which was signed into law in June 2019.  Failure to include this additional language may: (i) cause the clerk of the court to reject the document for recording; or (ii) invalidate any document improperly acknowledged.  As my colleague, Victor Diaz, explained in his article Best Practices:  The future is here:  Florida launches Remote Online Notarization, HB 409 authorizes the use of Remote Online Notarizations (“RON”) by Florida notaries through the creation of part II of chapter 117 of the Florida Statutes entitled “Online Notarizations.”  The implementation of HB 409 and use of RON will affect notaries, attorneys, borrowers, and lenders, not to mention the clerks of the court which will be required to accept electronically signed and notarized documents for recording in the public records.  The purpose of this article is to: (i) direct your attention to mandatory changes to the Florida notarial certificates for acknowledgments and jurats; and (ii) highlight various statutes affected and amended by HB 409.

For notarized documents and affidavits signed on or after January 1, 2020, the notarial certificate must state whether the signer personally appeared before the notary public either by means of: (i) physical presence; or (ii) audio-video communication technology.  The date of signing and the acknowledgment is operative.  Therefore, a notarized document or affidavit signed and notarized on or before December 31, 2019 may use the previously accepted language even if that document is not recorded until January 1, 2020 or after.  The new required language is acceptable for use immediately so the best practice is to implement the revised language as soon as possible but no later than January 1, 2020.

Multiple chapters of the Florida Statutes were substantially affected by HB 409 and subsequently amended to achieve the underlying goals of the law, which include: (i) adapting and utilizing innovations in technology to provide greater flexibility and convenience to the public as to the coordination required to execute notarized documents and affidavits; (ii) enhancing the securitization and integrity of notarized documents and affidavits; and (iii) improving business efficiencies and record-keeping for practitioners.

• Florida Statute Section 28.222 was amended to direct the clerks of the circuit courts who do not support e-recording to record “copies of any instruments originally created and executed using an electronic signature . . . and certified to be a true and correct paper printout by a notary public in accordance with chapter 117, if the county recorder is not prepared to accept electronic documents for recording electronically.”
• Florida Statute Section 117.05 was amended to state that a notary public must use a certificate in substantially the same form as one of the Statutory Short Forms of Acknowledgment (see below) in notarizing an attested copy.
• Florida Statute Section 117.07 was amended to remove the prohibition of lack of physical presence between the notary public and the person whose signature is being notarized if that person appears before the notary by means of audio-video communication technology as authorized under part II of chapter 117.
• Florida Statute Section 695.03 was amended to address compliance and validation of the record of conveyances of real estate and now states that: “the affixing of the official seal or the electronic equivalent thereof under s. 117.021 or other applicable law, including part II of chapter 117, conclusively establishes that the acknowledgment or proof was taken, administered, or made in full compliance with the laws of this state or, as applicable, the laws of the other state, or of the foreign country governing notarial acts.”
• Florida Statute Section 695.25 was amended to revise the “Statutory Short Forms of Acknowledgment” to state whether the signer personally appeared before the notary public either by means of: (i) physical presence; or (ii) audio-video communication technology. The Statutory Short Forms of Acknowledgment remain sufficient for their respective purposes, under any law of this state, and the authorization of the Statutory Short Forms of Acknowledgment does not preclude the use of other forms.

We will continue to update the lending community and provide additional information regarding the implementation of HB 409 and use of RON in Florida and its practical effects on commercial loan transactions.  For more information, please contact the attorneys at Starfield & Smith at (215) 542-7070.