Atty. Rami Hourani
This is intended as an abbreviated form of the 2020 Interim Rules on Remote Notarization of Paper Documents. This is for the convenience and quick reference of my fellow notaries. As the rules only just came out I shall be adding to this as I have more time to study the rules. If you have any suggested additions, kindly comment them below.
What do the rules not apply to?
The law does not apply to wills.(Rule 1, Sec. 2)
Where do the rules apply?
If the notary public or at least one of the principals resides, holds office, or is otherwise situated in a locality that is under community quarantine due to COVID-19 Pandemic as defined by:
- The IATF;
- Provincial Governors, for Component Cities and Municipalities;
- Mayors, with regard to barangays.
- Both governors and mayors, when they have the concurrence of the relevant regional counterpart body of the IATF. (Rule 1, Sec.3)
Who may notarize?
A notary public with a valid and existing notarial commission. (Rule 1, Sec. 4)
Is it different in terms of Legal Effect or Enforceability?
No. (Rule 1, Sec. 5)
What is personal appearance expanded to mean under these new rules?
It means that the notary can see hear and communicate with the principals and their witnesses, present and confirm competent evidence of identity to each other in real time though the use of videoconferencing facilities and other devices or technologies that achieve that same purpose.
What kind of courier must the principal use?
1. On-demand express delivery (GrabExpress, Lalamove, Transportify etc.)
2. Door-to-door express delivery services (LBC, JRS, DHL Express, FedEx, 2go)
3. Private Express and/or messengerial delivery services (PEMEDES)
4. Couriers authorized by the DICT, provided they are equipped with shipment racking facilities which enable users to track the movement of the shipment in real time. (Rule 1, Sec. 6.c.)
What is the procedure to be observed for acknowledgment?
First, the principal shall send the instrument or document requiring acknowledgment to the notary public with his signature already on it. The document must be sealed inside a sealed envelope and sealed with the initials of the principal. He must give the tracking number to the notary once this becomes available.
Second, the principal will be required to send two copies of any competent evidence of identity. If he/she is signing in a representative capacity, he/she shall likewise include two (2) certified copies of the document granting his or her authority to sign in such capacity as well as two (2) copies of any competent evidence of identity of the party granting the authority. If the authority granted is from a corporation, the principal shall provide two (2) copies of any competent evidence of identity of the corporate secretary certifying the principal’s authority or two (2) duplicate originals or certified copies of the Board Resolution granting the principal’s authority. The principal must show the notary the original of his proof of identity as well as the original document granting his or her authority to sign during the videoconference.
Third, the principal shall also submit to the notary public a video clip that he or she actually signed the instrument or document delivered for acknowledgment in a USB/CD in the sealed envelope already mentioned or by sending the video clip by e-mail or any other means of digital communication.
Fourth, upon receipt of the sealed envelope and the video clip, the notary public shall:
- Require the principal to confirm his/her identity;
- Require the principal to confirm his or her location to the satisfaction of the notary via an app with GPS capabilities or by showing identifiable landmarks or buildings within the vicinity;
- Open the sealed envelope wherein the instrument or document is placed within full view of the principal and require him or her to confirm that the instrument or document exhibited to him or her is the very same instrument or document which he or she caused to be delivered to the notary public for acknowledgment;
- Ensure that the instrument or document is kept within the full view of the principal at all times during the video conference;
- Require the principal to affix his or her handwritten signature on a blank piece of paper within full view of the notary public for comparison with the signature appearing on the instrument or document;
- Require the principal to confirm that the signature appearing at the end of the instrument or document belongs to him or her and that it was voluntarily affixed for the purposes stated therein;
- Review the video clip submitted by the principal to verify that he or she actually signed the instrument or document as represented; and
- Require the principal to declare that he or she has executed the instrument or document as his or her free and voluntary act and deed, and if acting in a particular representative capacity, that he or she has authority to sign in that capacity. The notary public shall assess the principal’s voluntariness by examining his or her demeanor and immediate surroundings and by asking searching questions. Should there be other persons present in the videoconference, the notary public shall require such persons to identify themselves and state the reasons why they are in the immediate vicinity of the principal and if not satisfied with the reasons given, require them to leave the immediate vicinity of the principal for the duration of the videoconference.
Fifth, if there are more than one principal, each shall comply with the procedure in paragraphs in the above four entries whether singly or in a group.
Sixth, after all of the foregoing is done the notary shall complete the notarial certificate with his seal and signature. The notarial certificate shall state that the notarial act was done through the use of video conferencing facilities in accordance with these rules. (Rule 2, Sec. 1)
What is the procedure to be followed for Affirmation, Jurat or Oath?
Same as in the previous entry except:
- There is no instance where they would be required to show an authority to sign because these are affirmation’s and oaths;
- The notary, during the examination, must take the additional step of requiring the principal to confirm that he or she has read the instrument or document in its entirety and has understood all the contents;
- Require the principal to avow to the whole truth of the contents of the instrument or document under penalty of law.
What to do if the document requires a witness?
The principal must provide two (2) copies of competent evidence of identity of the witnesses not personally known to the notary inside the enveloped that he sends.
What do the witnesses do?
The witnesses must be present in the video conference examination to be conducted.
What will the notary do for the witnesses?
First, he shall confirm their identities by asking them to show him their competent evidence of identity;
Second, he shall require the witnesses to confirm their location with a GPS enabled app or by showing identifiable landmarks or buildings in the vicinity;
Third, determine whether the witness is in fact disinterested and unaffected party to the instrument by asking searching questions;
Fourth, ask the witness to confirm every signature in the instrument that purports to be that of said witness and that he voluntarily placed the same there.
Fifth, require each witness to declare that he or she saw the principal affix his or her signature or thumbmark to the document.
Sixth, review the video clip submitted by the principal to verify that the witness actually saw the principal sign/affix his/her signature/thumbmark.
Can you use thumbmarks instead of signatures?
Can you do copy certification via Videoconference?
Where must everyone be?
All the parties, witnesses and the notary himself must be within the territorial jurisdiction of the court that issued the notary public’s commission.
How will the notary prove the “personal appearance” in his notarial register?
He must take a screen shot of the video conference. In the screenshot, all the parties must be present and the notary must be holding up the first page of the document to be notarized. The photograph must have a time and date stamp. This shall be attached to the notarial register. The notary shall also note the fact of the notarization having been done through video conference, and the particular facility used.
How will the notary retain documents pursuant to these rules?
He will keep one copy of all the documents attached to the notarial register as annexes and one copy for his own personal records. He must clearly label each photograph and competent evidence of identity with the document and page no of the relevant entry.
This is a work in progress and will be updated as I find more time to go through the rest of the rules. I shall add my own personal observations and best practices as I encounter remote notarization in my practice.