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04.27.2020 | Legal Advisory

On April 27, 2020, Massachusetts Governor Charlie Baker signed into law An Act Providing For Virtual Notarization To Address Challenges Related To COVID-19, which permits notaries in the Commonwealth to notarize documents remotely with the assistance of electronic videoconferencing technology while Massachusetts remains under the COVID-19 state of emergency (the “Remote Notarization Act”). 

What You Need to Know

Under certain circumstances, a Massachusetts notary public may notarize signatures that are observed through videoconferencing technologies while the Commonwealth is under the Covid-19 state of emergency. This temporary measure permits people to sign documents at home while a notary and witnesses observe via videoconferencing technology. This will facilitate completion of estate planning documents and real estate transactions while following social distancing guidelines issued by public authorities. Notarization is a technical legal process, so it is no surprise that the legislation is technical as well. Below is an overview of the temporary changes as they apply in the context of notarizing real estate and estate planning documents.

The Details

Temporary Rules Governing Remote Notarization in Massachusetts

The new law, effective today, enables notaries to notarize documents by real-time video conference rather than in person. Although the Remote Notarization Act does not require any specific type of videoconference software to be used, the software must be capable of recording the videoconference. The rules for notarizing most documents require only one videoconference, while documents that are necessary to effectuate a real estate transaction must be notarized over the course of two videoconferences. As detailed below, there are some specific requirements for documents related to real estate transactions and estate planning. 

The following requirements must be met with respect to all documents that are notarized under the Remote Notarization Act. 

• The notary and all signatories must be physically present in Massachusetts at the time of each videoconference.
• The signer(s) must disclose any person present in the room with the principal and must make that person visible to the notary.
• The notary must observe the execution of the document to be notarized. Note that this is different from “in person” notarization, which allows the signer to affirm or acknowledge his or her signature to the notary after the fact.
• The Remote Notarization Act does not change the requirement of having original, “wet” ink signatures from both the principal and the notary.
• The signer must provide the notary with satisfactory evidence of his or her identity. As under G.L. Ch. 222, Section 1, the notary may still rely on personal knowledge of the signer or may review his or her government-issued identification. If relying on the use of government-issued identification, the signer must show both the front and back of his or her ID to the video camera. Individuals using a passport as identification must show the passport cover, the pages containing a picture of his or her face, and the page containing his or her signature. In addition to showing the identification to the notary during the conference, the signer must provide the notary with a copy of the relevant sides or pages of his or her ID, either with the executed documents or separately through electronic means. Note that the signer’s identity cannot be proven through “the oath or affirmation of a credible witness unaffected by the document or transaction, who is personally known to the notary public and who personally knows the individual” (as is permitted for “in person” notarizations).
• The notarial certificate must include a recital indicating that the document was notarized remotely pursuant to the Remote Notarization Act and recite the county in which the notary was located at the time the notarial act was completed.
• The notary must complete an affidavit concerning the execution of the documents. (A detailed description of the affidavit is provided below.)
• After the execution of the document in question, the signatory must arrange for the original document to be delivered to the notary.
• The notary must make an audio and video recording of the performance of the notarial act and must keep a copy of these recordings for a period of 10 years.

Specific Considerations for Remote Notarization of Real Estate Documents

All documents that are notarized in connection with a real estate transaction, including deeds, mortgages, and other instruments to be recorded in a Registry of Deeds or filed in a Registry District of the Land Court, must be notarized by an attorney licensed to practice law in the Commonwealth or a paralegal under the direct supervision of such attorney, using a two-videoconference procedure. Once the first videoconference, as described above, has been completed and the notary has received the original executed documents from the signatory, the notary may then initiate the second videoconference with the signatory. During the second videoconference, the signatory must once again swear or affirm that he or she is physically located within Massachusetts and disclose to the notary any persons in the room with the signatory and show them on the video. In addition, the signatory must verify that the document received by the notary is the same document that the signatory executed during the first videoconference. Once those requirements are satisfied, the notary may then notarize the document, at which point the notarial act is deemed complete.

If the signatory is not personally known to the notary, real estate documents also require the signatory to provide a second form of identification containing the signatory’s name. The second form of identification must be displayed to the notary during the initial videoconference. Acceptable forms of second identification include, but are not limited to, a second form of government-issued identification, a credit or debit card, a Social Security card, a municipal tax bill, or a utility bill, provided that any such municipal tax bill or utility bill is dated within 60 days of the first videoconference.

The Remote Notarization Act also provides several protective measures that apply to real estate documents. First, the failure of the notarial certificate to reference that the notarial act was completed remotely pursuant to the Remote Notarization Act or to indicate the county in which the notary was located when the notarial act was completed does not affect the validity or recordability of the document. Second, the failure of the signatory either to be present in Massachusetts or to disclose the presence of witnesses to the notary during each videoconference shall 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, for documents being notarized in connection with a mortgage financing, the notarial certificate may recite the date stated within the body of the document even if that date precedes the date of completion of the notarial act. 

Specific Considerations for Remote Notarization of Estate Planning Documents

Only a notary who is an attorney licensed to practice law in the Commonwealth or a paralegal under the direct supervision of such attorney may notarize estate planning documents. The law provides that a notary may take the attestation of multiple individuals who are physically present in Massachusetts and are participating in the videoconference. The inclusion of this provision provides for the virtual presence of witnesses to those estate planning documents which must be witnessed under existing Massachusetts law. Further, estate planning documents may be signed in multiple counterparts by a testator and witnesses, enabling document execution to take place during a single videoconference. Following the videoconference, each party must transmit his or her original documents to the notary in order for the notarial stamp to be affixed and notary’s affidavit to be completed and attached. Despite this administrative delay, estate planning documents are considered valid upon the completion of a single videoconference. 

Requirements of the Notarial Affidavit

In addition to the requirements set out above, notaries must prepare an affidavit memorializing the signing conference in which they indicate that the notary has: (i) if applicable, received a copy of each principal’s current identification and visually inspected the credential during the initial videoconference; (ii) obtained the principal’s oral assent to video-record the conference; (iii)  taken each principal’s affirmation that he/she was physically present in the Commonwealth; and (iv) informed and noted on the affidavit any person who was present in the room and such individual’s relationship to the principal. The affidavit must be retained for a period of 10 years by the notary. For real estate documents, the notarial affidavit does not need to be recorded with a Registry of Deeds or filed with a Registry District of the Land Court.

Duration of the Temporary Remote Notarization Rules

The Remote Notarization Act will remain in effect for three business days following the lifting of the executive order declaring the COVID-19 state of emergency.

This advisory was prepared by Sara Goldman Curley, Matt Gaughan, and David Libardoni in Nutter’s Private Client and Real Estate Departments. For more information, please contact Sara, Matt, David, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.