ELECTRONIC NOTARIAL ACTS: A PERMANENT SOLUTION
Faced with the current public health emergency related to COVID-19, the Minister of Justice authorized on March 27, 2020, the remote signing of notarial acts. With this decree, notaries were allowed, for the very first time, to receive signatures to a notarial act in minute with the use of technological means.
The decree authorizing such signatures, however, had to be renewed on a weekly basis. At the time, it seemed that this authorization was only a temporary measure aimed at alleviating the constraints related to the confinement, and that this measure would end with the end of the state of health emergency. However, with the growing interest in teleworking and technologies in general, the Chambre des notaires and the Minister of Justice have revisited the temporary nature of technology-based notarial acts.
On August 31, 2020, the Minister of Justice, by Order number 2020–4304, extended the authorization for notaries to close notarial acts in minute using technological means until September 1, 2021. This Order may be subsequently renewed up to five times for a period of one year each, until the entry into force of a regulation regarding electronic notarial acts pursuant to section 98 of the Notaries Act (c. N-3). With this Order, notarial acts closed electronically are no longer subject to the state of emergency declared by the Government. We can therefore talk about a permanent measure.
With the adoption of the Order, remote closing of notarial acts will become more and more frequent. It is therefore important to recall some requirements and steps related to the signature process:
Verification of the identity and capacity of parties: removing the obligation to execute notarial acts in the physical presence of the notary does not exempt notaries from a rigorous verification of the identity of the parties. Each party will have to provide two (2) pieces of identification, including one photo ID, so the notary can ascertain the identity of the parties. The notary will also make sure that all parties give their informed consent.
Meeting by videoconference: Since the adoption of the first decree by the Minister of Justice and as of the publication date of this article, all remote meetings are held using the Microsoft Teams app [1]. It is mandatory for the notary and the parties to see and hear each other at all times, with the use of a device equipped with a camera and microphone. The “Share” icon available on Teams is an important tool, as the notary must see the signatory take all necessary steps to affix their electronic signature to the notarial act.
Signature process: Signing documents electronically is a relatively simple process. All parties will receive a link by email to access the signature pages. To authenticate themselves, they will also have to enter a code received by text message or by phone, or a password previously agreed upon with the notary. The deed will then be shown on the screen to view and sign. No handwritten signature is required. The deed is signed electronically by clicking on the “Approve and sign” button at the bottom of each document.
Whether in the context of a pandemic or outside a state of health emergency, it is not always easy for a notary to meet all parties in person. Both the constraints related to the confinement and those created by the geographical distance between the parties and the notary may bring additional difficulties when signing notarial acts. This new Order makes it possible to overcome these constraints, by offering an alternative solution to meeting the parties in person. However, it is necessary to mention that nothing in the Order imposes an obligation for notaries to proceed digitally. The use of technologies to close a notarial act in minute is and will remain at the discretion of each notary.
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[1] https://www.microsoft.com/en-ww/microsoft-365/microsoft-teams/download-app