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Law

MA Senate Bill 2645

Notary Law Update: MA Senate Bill 2645

State: Massachusetts

Summary:

Senate Bill 2645 temporarily authorizes Notaries to perform videoconference notarizations in Massachusetts.

Signed:  April 23, 2020

Effective:  April 23, 2020

Chapter: 71

Affects:

All Massachusetts Notaries Public.

Changes:

Definitions and Authorization

  1. Defines “principal” and “satisfactory evidence of identity.”
  2. Authorizes a Massachusetts Notary to perform notarial acts using electronic videoconferencing in real-time.
  3. Requires the Notary and principal for whom the videoconference notarial act is to be performed to be in Massachusetts.
  4. Clarifies the new law does not affect any law or regulation governing, authorizing or prohibiting the practice of law, including, but not limited to, the requirement that the closing of a transaction involving a mortgage or other conveyance of title to real estate may only be conducted by a Massachusetts attorney.
  5. Clarifies that with respect to the closing a transaction involving a mortgage or conveyance of real estate, any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or authorization under the federal Health Insurance Portability and Accountability Act only a Notary who is a Massachusetts attorney or a paralegal under the direct supervision of a Massachusetts attorney may perform a videoconference notarial act.
  6. Provides that the new law is repealed 3 business days after termination of the governor’s March 10, 2020, declaration of a state of emergency.

Identification of Remote Principal

  1. Stipulates that a principal must provide satisfactory evidence of identity to the Notary.
  2. Provides that if a principal is not a U.S. citizen, a valid passport or another government-issued ID that evidences the principal’s nationality or residence with a photo and signature is satisfactory evidence of identity.
  3. Provides that if the ID is a government-issued credential, the principal must display it to the Notary during the video conference and transmit a copy of the front and back of it to the Notary, either with the signed document or separately by electronic means.
  4. Provide that if the ID is a U.S. or foreign passport book, a copy of the front cover and page displaying the principal’s photo, name, and signature is a sufficient copy.
  5. Provides that the Notary must retain a copy of the ID and keep it secure and confidential in accordance with state and federal law for 10 years.
  6. Provides that if the document involves a mortgage or other conveyance of title to real estate, and if the ID is a government-issued credential and the principal is not personally known to the Notary, the principal must display during the initial videoconference a secondary form of ID containing a photo or signature or that is issued by a government entity, including, but not limited to, a credit or debit card, a social security card, a municipal tax bill or utility bill dated within 60 days of the first video conference.

Ceremony, Signing, Notarizing and Delivery of Document

  1. Requires the principal to make the acknowledgment, affirmation, or other act to the Notary.
  2. Requires the principal to cause the signed document to be delivered to the Notary by delivery service, courier or other means in accordance with the Notary’s instructions.
  3. Provides that if the document involves a mortgage or conveyance of title to real estate, the Notary and each principal must hold a second videoconference during which each principal verifies to the Notary that the document received by the Notary is the same document executed during the first conference.
  4. Requires the principal to swear or affirm that the principal is located within Massachusetts and disclose any person present in the room with the principal and make that person viewable to the Notary.
  5. Requires the notarial certificate for a videoconference notarization to recite that the document was notarized remotely, the county where the Notary was located, and the time of notarization.
  6. Provides that if the document relates to a mortgage finance transaction, the notarial certificate may recite the date stated within the body of the document, even if it precedes the date of completion of the notarial act.
  7. Provides that a will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy, or authorization under the federal Health Insurance Portability and Accountability Act, is complete when all original counterparts and the Notary’s affidavit are compiled.
  8. Provides that a document signed on multiple pages, in multiple locations or in multiple counterparts is as valid and effective if it is otherwise in conformity with the act.

Notary Videoconference Notarization Affidavit

  1. Requires the Notary to execute an affidavit under penalties of perjury that the Notary has: (a) received a copy of the principal’s current ID and visually inspected it during the first video conference; (b) obtained each principal’s verbal assent to any recording of the video conferences; (c) taken each principal’s affirmations as to their location in Massachusetts; and (d) been informed and noted on the affidavit any person present in the room with the principal, including a  statement of the person’s relationship to the principal.
  2. Requires the Notary to retain the Notary’s affidavit for 10 years.
  3. Clarifies that with respect to the closing a transaction involving a mortgage or conveyance of real estate, any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or authorization under the federal Health Insurance Portability and Accountability Act, if the Notary is a paralegal, the copy of a principal’s identification and the required Notary affidavit must be retained by the Notary’s supervising attorney.

Legality and Validity of Videoconference Notarizations

  1. Provides that the Notary affidavit is not required to be recorded with respect to any document recorded in a registry of deeds or filed with a registry district of the land court.
  2. Provides that a videoconference notarization is a properly executed and notarized document for all legal purposes in Massachusetts, including, but not limited to, for recording with the register 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.
  3. Provides that for any videoconference notarized document recorded in a registry of deeds or filed with a registry district of the land court, a principal’s being subsequently determined to have been physically located outside of Massachusetts during any videoconference or a principal’s having failed to accurately disclose the presence or identity of others in the room during any video conference, in either case, 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.
  4. Clarifies that the expiration, repeal, or amendment of the new law shall not affect the validity of a notarial act completed while the new law is in effect and performed in accordance with the terms of the new law.
Analysis:

Senate Bill 2645 is a temporary, COVID-19 measure allowing for ink signed documents to be notarized and witnessed using videoconference technologies. Massachusetts has followed Alaska, Kentucky, New Jersey and Pennsylvania in enacting legislation to provide the authorization for Notaries to perform these “remote ink signed notarizations (RIN) instead of the governor issuing an executive order or proclamation providing the authority. Senate Bill 2645 is unique in requiring not just one, but two videoconferences between the principal and Notary if the document being notarized is a mortgage or conveyance of title to real estate. The first videoconference meeting is held when the principal is identified and the document is signed and the second occurs after the Notary receives the document in the mail and provides the opportunity for each principal to confirm to the Notary that the document the Notary received is the same document each signed. Senate Bill 2645 also contains some unusual procedures for verifying the identity of the principal that any Notary who seeks to perform these RINs should carefully note and follow. The new law takes effect immediately and expires three business days after the termination of the governor’s March 10, 2020 declaration of state emergency.

Read the bill text.

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