From July 1, an amendment to the Law on the Notary Office entered into force, establishing the possibility for remote notarial acts using information technology. Such amendments were influenced not only by an evolving legal environment but also by the COVID-19 pandemic, which has encouraged the acceleration of remote processes in all fields, including the activity of Notaries.
Will the remote notarial acts, however, become regular or at least frequent practice? The various performance aspects of remote notarial acts described further will help answer this question.
Remote transactions will be decided by the Notary
All notarial acts may be performed remotely, except for the certification of wills, receipts for storage of wills equivalent to the official wills and the certification of the fact that a citizen is alive and is in a definite place.
Notarial acts may be performed remotely subject to the following conditions:
- the individual can be reliably identified;
- the meaning and consequences of the notarial acts performed can be duly explained to the individual;
- the will of the individual to enter into a transaction can be ascertained;
- the individual is able to certify his/her will to enter into a transaction with a qualified e-signature;
- cybersecurity can be ensured;
- the appropriate technical and organisational measures of personal data processing are used; and
- there are technical capabilities to transfer the data to registers and information systems.
To ensure the protection of the interests of an individual and the lawfulness of the performance of notarial acts, the Notary may choose not to perform notarial acts remotely, even though all the conditions for the performance of a remote notarial act are ensured. If that is the case, the Notary shall inform the individual that the latter should come to the Notary's office for the performance of the notarial act.
What is the practice in the field in the other Baltic States? In Latvia, remote notarial acts have been performed since July 1, 2018, by means of video conference software integrated into the electronic systems of the Notary Office. In Latvia, forty-five remote notarial acts were performed in 2018, 177 remote notarial acts were performed in 2019, and over 1000 remote notarial acts were performed in 2020. Considering this trend, it is likely that remote notarial acts are becoming more and more popular in Latvia.
In Estonia, the performance of remote notarial acts was formalised on February 1, 2020. Over 2200 remote notarial acts were performed throughout the first year. Thus, it is clear that the performance of remote notarial acts in Estonia is also rather active.
More difficult to assess the third-party pressure
Taking into consideration the new regulatory features, in all cases, the Notary decides on whether to perform the notarial act remotely or not. The Law does not require the Notary to justify refusing to perform a notarial act, and such refusal may not be appealed. The individual will likely be able to ask for the performance of the remote notarial act at several different Notary offices until they receive a positive answer. However, such a regulatory approach is flawed, especially considering the Notary's liability for even the smallest oversight, inadvertence or error.
Naturally, the question arises, whether the Notaries will identify the individual and ascertain their will to enter into the transaction one hundred per cent. The amendment to the Law on the Notary Office only provides abstract conditions (concerning identifying the individual and ascertaining their will to enter into the transaction), which must be ensured in cases where the notarial act is performed remotely. The amendment to the Law provides that the individual shall express their will with a qualified e-signature; however, the specific means for identifying the individual remain unknown. As the Chamber of Notaries coordinates the activity of Notaries, the specific means and rules for determining the individual remotely and the remote procedure itself shall be established by the latter. Therefore, it remains at the discretion of Notaries to decide, whether they are able to ascertain that the individual is real and to identify them only by using remote technological means.
Regarding the expression of personal will, the Notary must ascertain that the individual is not under any pressure to enter into a transaction. Remotely, the Notary has limited capacity to determine what is going on in the individual's environment, e.g. a situation may arise where only an individual is visible on the screen; however, the individual is under the pressure of other persons present in the room. It is also more challenging to determine whether an individual is under the influence of psychotropic substances. Therefore, it cannot be excluded that, to prevent the risk of faulty identification of personal will, the Notaries will refuse to perform notarial acts remotely.
Whether it would be fairer to apply lower service price rates for remote notarial acts, the question also arises. It is important to note that the nature of notarial acts and the risks of professional activities and civil liability of the Notaries remain the same, regardless of how the notarial act is performed (remotely or in-person). Moreover, the duration and labour costs for the performance of notarial acts depend mainly on the nature of the specific notarial act, rather than whether the notarial act is performed remotely or in-person as usual. The additional costs of Notaries for the installation and maintenance of technological means should also be taken into consideration. Therefore, the application of lower price rates for remote notary services should be considered as a flawed practice, mainly because lower price rates would discourage Notaries from performing remote notarial acts, and prevent their effective application in practice.
All in all, the amendment to the Law on the Notary Office, providing for the possibility of remote notarial acts, is considered to be positive, as this will offer the opportunity to perform notarial acts more quickly and conveniently. Considering the practice of the neighbouring states, it may be expected that Lithuanian Notaries will also be willing to perform remote notarial acts, especially in cases where such services are needed for individuals abroad.
Leave the interpreting to us! Translated by Pasaulio spalvos
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