CHAPTER 18-1
NOTARIES PUBLIC
18-1-1 Appointment by secretary of state--Term of office--Application procedure--Authority.
18-1-1.1 Definitions.
18-1-2 Oath and bond of notary.
18-1-3 Seal, oath, and bond filed with secretary of state.
18-1-3.1 Requirements of seal--Expiration date required.
18-1-4 Issuance of commission--Posting--Records maintained by secretary of state.
18-1-5 18-1-5, 18-1-6. Repealed by SL 1974, ch 55, § 50.
18-1-7 Notarial acts of interested person or agent valid if not principal party to instrument.
18-1-8 18-1-8. Repealed by SL 1979, ch 153, § 3.
18-1-9 Fee chargeable by notary.
18-1-10 Faith and credit to notarial acts.
18-1-11 Affixing official signature without appearance by parties as misdemeanor.
18-1-11.1 Notarial act--Video communication technology--Requirements.
18-1-11.2 Notarial act--Remote online notarization--Requirements.
18-1-11.3 Electronic audio-visual copy--Retention requirement.
18-1-11.4 Electronic official seal secured from tampering--Notice to secretary of state.
18-1-11.5 Authenticating printed electronically notarized records.
18-1-11.6 Form--Certificate of authentication--Remote electronic notarization.
18-1-11.7 Promulgation of rules.
18-1-11.8 Validity of notarial acts.
18-1-12 Acting after expiration of term or disqualification as misdemeanor.
18-1-12.1 Performing notarial act without commission as misdemeanor.
18-1-12.2 Party to transaction as notary public prohibited.
18-1-13 Removal of notary from office for violation.
18-1-14 Notice to notary of revocation of commission.
18-1-15 18-1-15 to 18-1-17. Repealed by SL 1974, ch 55, § 50.
18-1-1. Appointment by secretary of state--Term of office--Application procedure--Authority.
The secretary of state shall appoint notaries public, who have residence in this state as defined in § 12-1-4. A notary public shall hold office for six years unless sooner removed by the secretary of state. An applicant to become a notary public shall complete an application form as prescribed by the secretary of state pursuant to chapter 1-26. The applicant shall submit a fee of thirty dollars. The application shall include the applicant's name, street, city, state, zip code, county, and date of birth. The applicant shall apply in the same name as that which will appear as the seal imprint. Each notary may, anywhere in this state, administer oaths and perform all other duties required by law. The secretary of state may not appoint as a notary public any person who has been convicted of a felony. The secretary of state may also appoint an applicant as a notary public if the applicant resides in a county bordering South Dakota and the applicant's place of work or business is within the State of South Dakota.
Source: SDC 1939, § 32.1301; SL 1957, ch 176; SL 1979, ch 153, § 1; SL 1997, ch 120, § 1; SL 2003, ch 8, § 6; SL 2008, ch 107, § 1; SL 2009, ch 4, § 6.
18-1-1.1. Definitions.
Terms in this chapter mean:
(1) "Acknowledgment," a declaration by a person before a notarial officer that the person has signed a document for the purpose stated in the document and that the document is signed by a representative who is:
(a) An authorized officer, agent, partner, trustee, or other representative of a person other than a natural person;
(b) A public officer, personal representative, guardian, or other representative in the capacity stated in a document;
(c) An attorney-in-fact for a natural person; or
(d) An authorized representative of another person in any other capacity, that the representative signed the document with proper authority and signed it as the act of the person identified in the document;
(2) "Document" or "record," information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(3) "Identity proofing," a process or service by which a third party provides a notarial officer with a reasonable means to verify the identity of an individual by review of personal information from public or proprietary data sources;
(4) "Notarial act," an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the laws of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument;
(5) "Notarial officer," a notary public or other person authorized to perform a notarial act;
(6) "Official seal," a seal, stamp, or physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record;
(7) "Personal knowledge," a notarial officer has personal knowledge of the identity of an individual appearing before the officer if:
(a) The individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. The notarial officer must have known and had regular interactions with the individual for an extended period of time. A mere acquaintance does not amount to personal knowledge for purposes of this definition;
(b) The notarial officer represents the individual as the individual's attorney, real estate agent, auctioneer, or public accountant, or any combination thereof; or
(c) The notarial officer can reasonably identify the individual by two different methods of identity proofing.
(8) "Remotely located person," a person who is not in the physical presence of the notary;
(9) "Tamper-evident," any change to an electronic record displays evidence of the change;
(10) "Verification on oath or affirmation," a declaration, made by a person on oath or affirmation before a notarial officer, that a statement in a document is true; and
(11) "Video communication technology," an electronic device or process that allows a notarial officer physically located in this state and a remotely located person not in the physical presence of the notarial officer to communicate in real-time with each other simultaneously by sight and sound and that, as necessary, makes reasonable accommodation for individuals with vision, hearing, or speech impairments.
Source: SL 2019, ch 100, § 1; SL 2021, ch 89, § 1; SL 2024, ch 71, § 2.
18-1-2. Oath and bond of notary.
Each notary public, before performing the duties of the office, shall take an oath as required by § 3-1-5, and shall give a bond to this state, to be approved by the attorney general, in the penal sum of five thousand dollars, conditioned for the faithful discharge of the duties of the office.
Source: SL 1862, ch 62, § 2; PolC 1877, ch 17, § 2; CL 1887, § 496; RPolC 1903, § 735; RC 1919, § 5236; SDC 1939 & Supp 1960, § 32.1303; SL 1974, ch 55, § 23; SL 1997, ch 120, § 2.
18-1-3. Seal, oath, and bond filed with secretary of state.
Every notary public before entering upon the duties of his office, shall provide an official seal and file an impression of the same, together with his oath and bond, in the Office of the Secretary of State.
Source: SL 1862, ch 62, § 8; PolC 1877, ch 17, § 8; CL 1887, § 503; RPolC 1903, § 742; RC 1919, § 5243; SDC 1939 & Supp 1960, § 32.1303.
18-1-3.1. Requirements of seal--Expiration date required.
A notarial officer must have an official seal to be used for the purpose of acknowledging a document. The seal must be a type approved by the secretary of state and must contain at least:
(1) The notarial officer's name;
(2) The words "South Dakota";
(3) The words "notary public"; and
(4) A surrounding border.
Rubber stamp seals and electronic seals must contain the words and seal within the surrounding border.
A notarial officer must indicate the date on which the notarial officer's commission expires below the official seal under this section.
Source: SL 1988, ch 180; SL 2008, ch 107, § 2; SL 2019, ch 100, § 3; SL 2024, ch 71, § 3.
18-1-4. Issuance of commission--Posting--Records maintained by secretary of state.
The secretary of state shall issue a commission to each notary public which shall be posted in a conspicuous place in the notary's office for public inspection. The secretary of state shall keep in his office a record of such appointments and the date of their expiration.
Source: SL 1889, ch 104, § 1; RPolC 1903, § 734; RC 1919, § 5235; SDC 1939 & Supp 1960, § 32.1302; SL 1979, ch 153, § 2.
18-1-7. Notarial acts of interested person or agent valid if not principal party to instrument.
A person who is personally interested directly or indirectly, or as a stockholder, officer, agent, attorney, or employee of any other person or party to a transaction concerning which the person is performing the function of a notary public, may make any certificate, take any acknowledgment, administer any oath, or do any other official act as a notary public with the same legal force and effect as if the person had no interest, provided the instrument or document does not show upon its face that the person is a principal party to the instrument or document.
Source: SL 1911, ch 197; RC 1919, § 5250; SDC 1939 & Supp 1960, § 32.1308; SL 2019, ch 100, § 4.
18-1-9. Fee chargeable by notary.
A notary public may charge and receive a fee not to exceed ten dollars for each instrument notarized, except that no notary public may charge a fee for notarizing a request for an absentee ballot.
Source: SDC 1939 & Supp 1960, § 32.1312; SL 1979, ch 153, § 4; SL 1997, ch 120, § 3; SL 2004, ch 143, § 1.
18-1-10. Faith and credit to notarial acts.
Full faith and credit shall be given to all the protestations, attestations, and other instruments of publication, of all notaries public now in office or hereafter to be appointed under the provisions of this chapter.
Source: SL 1862, ch 62, § 11; PolC 1877, ch 17, § 11; CL 1887, § 507; RPolC 1903, § 746; RC 1919, § 5247; SDC 1939 & Supp 1960, § 32.1309.
18-1-11. Affixing official signature without appearance by parties as misdemeanor.
A person is guilty of a Class 2 misdemeanor if the person is a notarial officer who affixes the person's official signature to any document when the parties to the transaction memorialized in the document have not appeared before the person either in-person or in accordance with § 18-1-11.1.
Source: SL 1887, ch 116, § 1; CL 1887, § 508; RPolC 1903, § 747; RC 1919, § 5248; SDC 1939 & Supp 1960, § 32.1313; SL 1979, ch 153, § 5; SL 2019, ch 100, § 5.
18-1-11.1. Notarial act--Video communication technology--Requirements.
A notarial officer in this state, while located in this state, may perform a notarial act executed on a tangible document by a person not in the physical presence of the notarial officer, but observed by the notarial officer through means of video communication technology, if the notarial officer:
(1) Has personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed;
(2) Affixes the notarial officer's signature to the original tangible document executed by the person;
(3) Indicates in the notarial certificate the remote location of the person executing the document;
(4) Indicates in the notarial certificate that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of video communication technology; and
(5) Is able reasonably to confirm that the document before the notarial officer is the same document in which the person made the statement or on which the person executed a signature.
Source: SL 2019, ch 100, § 2; SL 2021, ch 89, § 2.
18-1-11.2. Notarial act--Remote online notarization--Requirements.
A notarial officer in this state, while located in this state, may perform a notarial act executed on an electronic record by a person not in the physical presence of the notarial officer but observed by the notarial officer through means of video communication technology if the notarial officer:
(1) Has personal knowledge, by means of two different methods of identity proofing, that the person has the identity being claimed;
(2) Affixes the notarial officer's signature to the electronic record executed by the person;
(3) Indicates the remote location of the person executing the document in the notarial certificate pursuant to § 18-4-30;
(4) Indicates in the notarial certificate pursuant to § 18-4-30 that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of video communication technology, and a tamper-evident electronic notarization system; and
(5) Creates an audio-visual copy of the performance of the notarial act.
Source: SL 2024, ch 71, § 4.
18-1-11.3. Electronic audio-visual copy--Retention requirement.
A notarial officer must retain an electronic audio-visual copy of each notarial act involving the use of a tamper-evident notarization system for ten years from the date of the performance. Upon suspension or revocation of a notarial officer's commission, or upon death or incapacity, the notarial officer or the guardian, conservator, or personal representative of the incapacitated or deceased notarial officer must retain an electronic audio-visual copy of each notarial act for ten years. In lieu of retaining copies as required by this section, the copies may be held by a repository designated by or on behalf of the notarial officer.
Source: SL 2024, ch 71, § 5.
18-1-11.4. Electronic official seal secured from tampering--Notice to secretary of state.
A notarial officer, prior to performing notarial acts with respect to electronic records, must select at least one tamper-evident electronic notarization system with which to place the signature and official seal of the notarial officer on electronic records. A person may not require a notarial officer to perform a notarial act with respect to an electronic record with a system that the notarial officer has not selected. A notarial officer must notify the secretary of state, on forms prescribed by the secretary, of the names of each tamper-evident notarization system used by that notarial officer for the notarization of electronic records.
Source: SL 2024, ch 71, § 6.
18-1-11.5. Authenticating printed electronically notarized records.
A register of deeds must accept for record a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a signature on a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies the tangible copy is an accurate copy of the electronic record pursuant to § 18-1-11.6.
Source: SL 2024, ch 71, § 7.
18-1-11.6. Form--Certificate of authentication--Remote electronic notarization.
The certificate authenticating a printed electronic record under § 18-1-11.5 must be substantially in the following form:
I, ______________, a notary public, certify that the attached document is an accurate copy of the original electronic record upon which my electronic signature and official seal are inscribed, and that the electronic record was printed by me or under my supervision.
I hereunto set my hand and official seal.
_______________________________
_______________________________
Title of officer.
Source: SL 2024, ch 71, § 8.
18-1-11.7. Promulgation of rules.
The secretary of state may promulgate rules pursuant to chapter 1-26 to:
(1) Create standards for online notarial acts in accordance with §§ 18-1-1.1, 18-1-3.1, and 18-1-11.2 to 18-1-11.8, inclusive, including standards for credential analysis, identity proofing, and communication technology used for online notarial acts; and
(2) Ensure the integrity, security, and authenticity of online notarial acts in accordance with §§ 18-1-1.1, 18-1-3.1, and 18-1-11.2 to 18-1-11.8, inclusive.
Source: SL 2024, ch 71, § 9.
18-1-11.8. Validity of notarial acts.
The failure of a notarial officer to perform a duty or meet a requirement specified by law does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on the law of this state or the law of the United States. Nothing in this section validates a purported notarial act performed by an individual who does not have the authority to perform notarial acts.
Source: SL 2024, ch 71, § 10.
18-1-12. Acting after expiration of term or disqualification as misdemeanor.
It is a Class 2 misdemeanor for any notary public to exercise the duties of his office after the expiration of his commission or when he is otherwise disqualified.
Source: SL 1887, ch 116, § 1; CL 1887, § 508; RPolC 1903, § 747; RC 1919, § 5248; SDC 1939 & Supp 1960, § 32.1313; SL 1979, ch 153, § 6.
18-1-12.1. Performing notarial act without commission as misdemeanor.
A person is guilty of a Class 1 misdemeanor if the person performs a notarial act on any document without first obtaining a commission from the secretary of state under § 18-1-4.
Source: SL 1997, ch 120, § 5; SL 2019, ch 100, § 6.
18-1-12.2. Party to transaction as notary public prohibited.
It is a Class 1 misdemeanor for a person to affix a signature to a document as a notary public when the person has also signed the document as a party to the transaction proceeding.
Source: SL 1997, ch 120, § 6.
18-1-13. Removal of notary from office for violation.
Any notary public who is convicted of committing an act which is designated as a misdemeanor in this chapter or any felony shall be removed from office by the secretary of state.
Source: SDC 1939, §§ 13.1254, 32.1313; SDC Supp 1960, § 32.1313; SL 1979, ch 153, § 7; SL 1997, ch 120, § 4.
18-1-14. Notice to notary of revocation of commission.
Should the commission of any notary public be revoked, the secretary of state shall immediately notify such person by mail.
Source: PolC 1877, ch 17, § 10; CL 1887, § 506; RPolC 1903, § 745; RC 1919, § 5246; SDC 1939 & Supp 1960, § 32.1306; SL 1974, ch 55, § 24.
