Given the widespread impact of the novel coronavirus, including shelter-in-place orders, many businesses are required to operate remotely. Fortunately, Florida state law now allows for a significant amount of business to be conducted electronically and efficiently, including by allowing for legal electronic signatures, audio-visual witnessing, electronic recording, and most recently, online notarization in many circumstances. The most recent changes, governing electronic wills and online notarization, were adopted in the 2019 legislative session and became effective on January 1, 2020.
- Electronic Signatures
The Electronic Signature Act of 1996 states that electronic signatures have the same legal effect as written signatures unless otherwise provided by law.
Florida subsequently adopted the Uniform Electronic Transaction Act (UETA), codified at section 668.50, Florida Statutes, which further addresses the use of electronic records and signatures in all transactions other than those concerning wills, codicils, testamentary trusts, and certain provisions of the Uniform Commercial Code.
Notably, effective January 1, 2020, Florida now also allows electronic wills unless the testator is a vulnerable adult. §§ 732.521, et seq., Fla. Stat. (2019). Florida is one of only four states—along with Arizona, Indiana, and Nevada—that allow for any sort of digital wills.
Under the UETA, documents cannot not be denied legal effect solely because they are in electronic form or contain electronic signatures. The parties must agree to the use of electronic records and/or signatures; however, they need not follow any formal requirements.
Although no formal requirements are necessary, we recommend the following best practices for using electronic signatures in commercial transactions:
- Provide a secure method for each party to access and sign the documents;
- Maintain a record or audit trail of the signing process;
- Use a system that will prevent post-signature alterations; and
- Use a secure storage and retrieval method that can be proven.
The general rule in Florida is that a commercial lease for a term greater than one year must be signed in the presence of two subscribing witnesses. § 689.01, Fla. Stat. (2019). When witnessing an electronic signature, Florida law states that this requirement is satisfied if the witness: (i) is in the physical presence of the signatory or present through audio-video communication technology at the time of signing, and (ii) hears the signatory make a statement acknowledging that they have signed the electronic record. The witnesses may also sign the document electronically.
Such acts of witnessing are “validated and upon recording, may not be denied to have provided constructive notice based on any alleged failure to strictly comply with this section or the laws governing notarization of documents, including online notarization.” § 689.01(3), Fla. Stat.
In certain cases, leases or related documents may have to be recorded in the public records. Florida has adopted the Uniform Real Property Electronic Recording Act (URPERA), which allows local recording offices to accept deeds and other property records in electronic form. § 695.27, Fla. Stat. (2019).
Passed in 2007, the URPERA states that if a law requires, as a condition of recording, that a document be an original, be on paper, or be in writing, the requirement is satisfied by an electronic document. Similarly, if a law requires that a document be signed, an electronic signature is sufficient. In addition, electronic documents that must be notarized, verified, witnessed, or made under oath are valid and may be recorded if the notary or witness uses an electronic signature and all the other required information is attached to the document.
Importantly, the URPERA electronic recording standards only apply to those Florida counties in which the county recorder elects to accept electronic real property documents for recordation. Also, even though the UETA and URPERA allow many types of electronic signatures, county recorders are only required to accept electronic signatures that they have the supporting technology.
- Online Notarization
Also effective as of January 1, 2020, Florida allows documents to be notarized online when the notary and the signatory are in different physical locations and are connected through audio-video communication technology. § 117.201, et seq., Fla. Stat. (2019).
Online notarization requires the notary to be registered as a Remote Online Notary Public with the Florida Department of State in order to provide online notarization services. An online notary public can perform any of the functions of a traditional notary and is subject to the same rules as a traditional notary in addition to those that only apply to online notarizations. While the signatory and witnesses (if any) can be located anywhere, the online notary public must be physically located in Florida at the time of the notarization.
An online notary public can only charge up to $25 per online notarization and up to $25 for making and delivering an electronic copy of an electronic record.
Before performing an online notarization, the notary is required to confirm the identity of the signatory by either personal knowledge or by complying with certain threshold requirements including the remote presentation of a government issued identification. Any witnesses are also required to go through the same authentication procedures.
Once authenticated, the signatory, witnesses, and notary are connected through audio-visual communication technology and the recording begins. The signatory must make a declaration that his or her signature on the record is knowingly and voluntarily made. A recording of the entire process must be retained for ten years.
Tache, Bronis, Christianson and Descalzo, P. A.
150 S.E. 2nd Avenue, Suite 600, Miami, FL 33131