Despite the COVID-19 pandemic, real estate closings and loan refinancings are continuing to take place – but not without adapting. There required some immediate, albeit temporary, changes in how such transactions are conducted in Massachusetts. In addition to the complications surrounding open houses, closings, and the filing of documentation in registries of deeds that are closed to the public, the necessity of having a notary public physically present for the signing of documents was yet another hurdle. As a result, virtual notarization laws have been enacted in many states, now including in Massachusetts. This post includes a step-by-step guide to the recent virtual notarization law in Massachusetts that allows real estate practitioners and our clients to conduct real estate closings in real time while simultaneously safely adhering to social distancing standards required by the COVID-19 state of emergency.
In law, there are general rules and exceptions to those rules. In the Commonwealth, conveyance of title to real estate may only be conducted by an attorney duly admitted to practice law in Massachusetts. The attorney is required to be an appointed notary public in accordance with Mass. General Laws, Chapter 222. The general rule is that the notary law requires that a notarial act may be completed only if both the notary and signer are in each other’s “physical presence at a single time and place.” COVID-19 and the requirements of social distancing mandated an exception to this rule. The exception for virtual notarizations was codified in Chapter 71 of the Acts of 2020 (the “Act”). This emergency Act, signed into law on April 27, 2020, allows for electronic video conferencing when notarizing documents. The Act is temporary and remains in effect for the duration of the state of emergency that Governor Baker instituted on March 10, 2020. This Act suspends the general requirement for the signer and the notary to be physically present in the same location, and authorizes the use of electronic video conferencing when notarizing someone’s signature.
Notarizations are required in many different sectors of society including, but not limited to, estate planning, banking, and insurance. The Act provides temporary assistance to address the challenges faced by professionals and the public in these areas. My focus here is to review the application of the Act in the context of the COVID-19 related social distancing challenges faced by real estate lawyers and our clients in Massachusetts.
Virtual notarizations have had an immediate and welcoming benefit to the real estate bar and the clients we serve. Prior to the enactment of this law, many real estate attorneys struggled to maintain social distancing guidelines while attempting to close real estate transactions. Clients, including lenders, borrowers, buyers, and sellers who wanted to close a real estate transaction would likely have to assume the risk of exposure that an in-person closing could create. The Act alleviates the worries involved with face to face real estate closings.
The mechanics of the Act direct each party embarking on the process exactly how to proceed and how to properly maintain documents of such virtual notarizations.
TIP: The notary has additional responsibilities including to state on the document that it was notarized remotely, and to sign an affidavit stating that the notary complied with the requirements of the Act. In addition, the notary must create an audio and video recording of the performance of the notarial act. Both the affidavit and the videos must be retained for 10 years. If a paralegal is the notary, the supervising attorney shall retain copies, affidavits, and recordings for the 10-year period.
This real time virtual notarization law will assist the citizens of Massachusetts with conducting real estate transactions in a safe and practical manner for the duration of the on-going pandemic.
If you need assistance with a real estate transaction, please do not hesitate to reach out to Darly G. David, a partner in the Lawson & Weitzen Real Estate Transactions group.