By: Michael Stanley
May 1, 2020
On April 28, 2020, Governor Baker signed, “An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19” (“Act”). As an emergency act, the Act is effective immediately, and expires three days after Governor Baker terminates the COVID-19 state of emergency. Upon expiration, Massachusetts law will revert and only allow standard in-person notarizations. The Act provides an alternative to coordinating the execution of documents signed in the actual presence of a notary public during this state of emergency, but it is important that if title insurance is involved that any additional requirements the title insurance company are also considered. Below is a summary of the key Act provisions.
- Under the Act, only a notary public who is also a Massachusetts licensed attorney or a paralegal under the supervision of a Massachusetts licensed attorney, may notarized the following documents:
- Documents signed during a closing transaction involving a mortgage or other conveyance of title to real estate;
- Nominations of guardian or conservator;
- Caregiver authorization affidavits;
- Durable powers of attorney;
- Health care proxies; and
- Authorizations under HIPAA.
All other documents can be notarized by a notary public that is neither a Massachusetts attorney nor a paralegal under an attorney’s supervision.
- Virtual notarial acts must comply with the following conditions:
- The signatories and the notary must use a videoconferencing technology to record the acts of execution.
- All signatories must be physically located in the Commonwealth of Massachusetts, and the must swear of affirm this fact to the notary during the video conference;
- The notary must observe the signatories execute the document;
- Each signatory must disclose anyone present in the room where the execution takes place and such person must be visible to the notary;
- The signatories participating in the remote notarization must provide the notary public with a valid photo ID displayed during the video conference. Additionally, the signatories must take the following additional actions with respect to IDs.
- The signatories must transmit by fax or other electronic means a legible copy of the front and back of the photo ID to the notary public;
- If the signatory uses a U.S. or foreign passport book as the photo ID, the transmitted copy must also include the front cover and page displaying his or her photograph, name, and signature;
- If the signatory is not a US citizen, the signatory must use and transmit either a valid passport, other foreign government-issued ID or credential, stating nationality or residence and bearing the signatory’s photograph and signature.
- Once executed, all signatories to the document must transmit the signed original document to the notary public who observed the execution; only then may the notary public notarize the transmitted copy of the document.
- The notarial certificate must state that the document was notarized remotely under the Act and include the following information:
- The county in which the notary public was located at the time the notarial act was completed;
- The date on which the notarial act was completed; and
- With respect to mortgage finance transactions, the date in the notarial certificate may state the date within the body of the document even if that date predates the date in which the notary completed the notarial act.
- After the notary notarizes the document and executes the notary affidavit, all wills, nominations of guardian or conservator, caregiver authorization affidavits, trusts, durable powers of attorney, health care proxies and authorizations under HIPAA will be deemed complete.
- The Act places additional requirements to complete transaction with respect to mortgage or conveyance of title to real estate. In this instance, the parties must participate in a second video conference where each signatory verifies to the notary public that the document received is the same document executed during the initial video conference.
Additionally, if it is later determined that a signatory was not located in Massachusetts during the initial video conference or if an undisclosed person was in the room during the video conference, such fact does “not constitute grounds to set aside the title to real property acquired by an arm’s length third-party mortgagee or purchaser for value.”
Finally, a second form of identification is required if the signatory is not known to the notary public observing the execution of the documents.
- Importantly, the Act does not eliminate the need for witness signatures, a witnesses signature is valid provided it is also observed notarized in accordance with the Act, and it contains no provision permitting the use of electronic signature technology, such as DocuSign.
- Lastly, the Act imposes a record keeping duty on notary publics and supervising attorneys. Notary publics and supervising attorneys must retain a copy of the video documenting the execution of the document and the photo IDs presented for 10 years. Additionally, the notary must execute an affidavit and maintain it for 10 years stating that the notary:
- Received copies of the photo IDs presented by the signatories and inspected them during the video conference;
- Obtained the verbal assent to the recording of the video conference by each signatory;
- Verbally affirmed that each signatory was physically located in Massachusetts; and;
- Been informed any person present in the room with the signatories and that person’s relationship with the signatory.
However, a notary public’s failure to include these confirmations in the affidavit does not affect the validity or recordability of the executed document and the affidavit itself does not need to be filed or recorded.