In order to guarantee the maintenance of essential services during the period of social distancing imposed in response to the covid-19 pandemic, the São Paulo State Department of Justice approved, on April 28th, CG Ordinance No. 12/20, which regulates the procedure for drawing up public deeds by videoconference and electronic signature.
The measure covers the most varied of types of public deeds, including the purchase and sale of real estate, notarial acts, public powers of attorney, and mortgage guarantees. Based on the existence of more specific provisions and formalities for such acts in the Brazilian Civil Code, it was expressly prohibited, however, to perform notarial acts for the drawing up of a public will and approval of a sealed will. During the pandemic, such acts may still be carried out in person, respecting the exceptional operating arrangement for notary publics.
For the approval of this ordinance, which has an initial validity of 30 days from its publication, special consideration was given to the peculiarities relating to the territorial jurisdiction of the notary public and the security in identifying the signatory parties of the deeds. In sum, the main rules are as follows:
1) As for territorial jurisdiction:
- Acts of acquisition or creation of real property rights must be executed by the notary public of the district where the property is located.
- Acts that do not comprise acquisition or creation of real property rights must be drawn up by a notary public of the district of the residence of one of the parties to the legal deal.
- Public powers of attorney shall be drawn up by the notary public of the district of the granting party's domicile.
2) As for formalities:
- The capacity and expression of will of the parties shall be verified by remote means, via image and sound transmission (videoconference). The notary public should preserve the recording of this content. The videoconference can be done simultaneously with all the parties or individually with each of them.
- The identity of the parties shall be verified remotely by means of presentation of a digital identification document or, failing that, of documents that have been filed for the opening of signatures at the notary office itself or at another notary office.
- If the signature card has been opened before another notary, the person in charge of the other service will have 24 hours to send it to the notary who will draw up the act a scanned copy of the card and the party’s documents.
- The parties must sign via a digital certificate with the ICP infrastructure standard.
In addition to the performance of notarial acts via electronic media, notaries public linked to a registration authority may also issue digital certificates by videoconference during the state of public health emergency. This flexibility originates from Executive Order No. 951/20, of April 15, regulated by Resolution No. 170/20, of April 23, of the Public Keys Infrastructure Management Committee, which, by allowing videoconferencing for this purpose, waives the collection of fingerprints from interested parties.
The state of São Paulo is not, however, the first to regulate the performance of notarial acts by electronic means. The Rio de Janeiro Justice Department, through the CGJ Ordinance No. 31/20, of March 25, had already allowed the performance of acts in electronic form in the state without, however, providing rules in such detail.
In São Paulo, some notaries are already moving to offer the service as soon as possible. On the other hand, some notaries still have doubts about the practical application of the rules, for example, regarding the need for an individual digital certificate for representatives of legal entities.
Without prejudice to any procedural shortcomings that may exist, the measures announced have the potential to greatly facilitate the drawing up of public deeds during the pandemic, for which they were proposed, in addition to perhaps contributing to modernizing the Brazilian notarial system, boosting the economy and real estate businesses that require the services of notaries.