5 May 2020
On April 27th, in response to the COVID-19 public health crisis, Governor Baker signed into law Section 71 of the Acts of 2020 entitled “An Act for Providing Virtual Notarization to Address Challenges related to COVID-19” (the “Act”). The Act allows notary publics to perform remote ink notarizations via video conferencing (such as Zoom or FaceTime) pursuant to certain requirements. The statute is temporary, and will be automatically repealed three (3) days after the Massachusetts state of emergency has been lifted.
Below is a summary of the Act, including the requirements imposed on the notary public and document signer pursuant to the Act.
Under the Act, remote ink notarization may be conducted via electronic video conferencing if:
- The video conference allows the document signer and notary to communicate in real time and the notary observes the signer’s execution of the documents during the video conference.
- The signer and the notary are both physically located in the Commonwealth.
- The signer must swear or affirm under the penalties of perjury that the principal is physically located within the Commonwealth.
- The signer must disclose any person present in the room and that person or persons must be made viewable to the notary.
- Unless personally known to the notary, the signer must provide the notary with satisfactory evidence of identity in the form of a government-issued photo ID.
- The notary must receive the ID in either hardcopy or electronic format and it must be retained by the notary for ten (10) years.
- The signer must send a copy of the front and back of a government-issued ID or a copy of the front cover and page featuring the signer’s photograph, name and signature of a passport.
- The signer must execute the documents using wet-ink signatures and make their acknowledgment, affirmation or other notarial act to the notary during the video conference.
- The notary must create an audio and video recording of the notarial act, which must be retained by the notary for ten (10) years.
- The signer must return the original signed documents to the notary via delivery service, courier, or other means in accordance with the notary public’s instructions.
- Upon receipt of the original signed documents, the notary affixes his/her signature and stamp and/or seal.
- The notarial certificate attached must include a statement indicating that the document was notarized remotely pursuant to the Act, noting the county in which the notary was located and including the date on which the notarial act was completed.
- The notary must complete an affidavit, which states that the notary has:
- Received a copy of the signer’s ID, if applicable;
- Obtained the signer’s verbal assent to record the video conference;
- Taken the signer’s attestation as to the signer’s presence in Massachusetts; and
- Been informed and noted on the affidavit any person present in the room with the signer during the video conference, including the relationship of any such person to the signer.
- The notary must retain the affidavit for ten (10) years following the execution of the documents.
Please note that for any document submitted for recording in land records, the notary is not required to include a copy of the affidavit.
Real Estate Documents: Under the Act, for any documents requiring notarization in the course of closing a transaction involving a mortgage or other conveyance of title to real estate, the notary must:
- Be a Massachusetts-licensed attorney, or a paralegal under the direct supervision of a Massachusetts-licensed attorney.
- Review a second form of identification, unless the signer is personally known to the notary.
- This second form of identification must include the signer’s name and can be a credit or debit card, social security card, or municipal tax or utility bill dated within 60 dates of the first video conference, or other similar documents.
- Conduct a second video conference upon receipt of the original documents, during which the signer verifies to the notary public that the document received is the same document executed during the first video conference.
- Following the verification, the notary will affix their signature and stamp and/or seal to the documents. If the document concerns a mortgage financing transaction, the notarial certificate may recite the date stated within the body of the document, even if that date precedes the date of completion.
- Retain copies of the signer’s identification along with the video recording and affidavit for a period of ten (10) years.
In the event that the signer does not have the ability to print documents, the notary should mail a copy to her for execution. All documents executed and notarized under the Act must be signed in wet ink and wet notarized.
Additionally, Congress is currently considering a federal remote notarization act, which would allow notaries in every state to conduct a remote online notarization and would preempt the Act. This would allow notaries located anywhere in the country to conduct remote online notarizations related to Massachusetts.
Though the Act allows for remote ink notarizations, lenders may have their own specific requirements regarding remote execution of documents. When executing lending documents, it is best practice to ensure that the process you are using does not violate the particular lender’s closing instructions.
If you have any questions regarding the Act, COVID-19, or any other legal issue, please contact a Pierce & Mandell attorney.
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