On April 27, 2020, Massachusetts Governor Charlie Baker signed emergency legislation into law alleviating the need for risky in-person visits typically required when notarizing important documents in Massachusetts. The law authorizes changes to existing practices legalizing virtual notarization of documents for all legal purposes, including for recording with the registry of deeds of any county, for filing as a valid will and for filing or recording with any other state, local or federal agency, court, department or office. This law is temporary and expires 3 days after Governor Baker lifts the COVID-19 State of Emergency.
The law, entitled An Act Providing For Virtual Notarization To Address Challenges Related to COVID-19, authorizes a duly qualified Massachusetts notary public to utilize electronic video conferencing in real time to notarize documents under the following circumstances:
(i) the notary observes the signor’s execution of each document;
(ii) the notary and the signor are physically located in Massachusetts;
(iii) the notary obtains satisfactory evidence of the signor’s identity.
If the signor is not a U.S. citizen, a valid passport or other government-issued identification is required. For U.S. Citizens, either a government issued photographic identification, such as a state issued driver’s license, is required or the identification of the signor based upon the notary’s personal knowledge of the identity of the signor. In certain circumstances, a second form of identification may be required. The signor must visually display the identification to the notary during the video conference and also transmit copies of the front and back of the identification to the notary. The notary must maintain the copies for 10 years;
(iv) each signor must make the required affirmation to the notary and swear or affirm under the pains and penalties of perjury that each signor is physically located with Massachusetts and disclose whether any other person is present in the room with the signor and the relationship of that person to the signor;
(v) the signor must deliver the executed, original documents to the notary by delivery service, courier or otherwise as directed by the notary; and
(vi) if the documents notarized involve execution of a mortgage or other documents relative to a conveyance of real estate, upon the notaries receipt of the original documents, the notary and signor must engage in a second video conference during which the signor verifies to the notary that the documents received by the notary are the same as executed during the first video conference.
Upon completion of the above described process, the notary may affix the notary’s stamp and signature to the executed document whereupon the notarial act is completed.
The notary certificate attached to the executed documents must be modified to recite:
(i) that the document was notarized remotely under the law;
(ii) the county in which the notary was located; and
(iii) the date the notarial act was completed.
The notary must execute, and retain for 10 years, an affidavit confirming under the penalties of perjury that the notary has:
(i) received a copy of the signor’s identification and visually inspected same during the initial video conference;
(ii) obtained the signor’s verbal assent to recording of the video conference;
(iii) taken the signor’s affirmation as to the physical presence of the signor within Massachusetts; and
(iv) been informed by the signor and noted on the affidavit any person present in the room, including a statement of the relationship of such person to the signor.
Lastly, each notary who performs a notarial act utilizing electronic video conferencing shall create an audio and video recording of the performance of the notarial act which recording shall be retained for 10 years.
While the law does not define specific technology to be utilized, we strongly recommend that attorneys look to their title insurance company and lenders for guidance on a deal by deal basis. Additionally, it is recommended that attorneys make an inquiry with their professional liability insurers to confirm that their existing policy provides coverage for notarial acts performed virtually pursuant to the temporary law.
For questions, please contact Attorney Walter Mirrione at (774) 517-5751 or by email at wmirrione@msullc.com.