On April 27, 2020, Governor Baker signed into law An Act providing for virtual notarization to address challenges related to COVID-19 (“the Act”). The Act takes effect immediately, and will be repealed three business days following the revocation, termination, or other discontinuance of Executive Order No. 591, dated March 10, 2020.
The purpose of the Act is to establish a process by which Massachusetts lawyers and their paralegals, who are already Massachusetts notaries, can notarize real estate closing documents notwithstanding the fact that the notarization is not taking place in person, as required by Mass. General Laws, c. 222. The Act allows acknowledgments to occur via an electronic video conference.
For the Act to apply, ALL of the following must take place:
Both the signatory and the notary must be physically located in the Commonwealth of Massachusetts.
The notary must observe the execution of the subject document using electronic video conferencing in real time.
During the first video conference, the notary must visually examine the evidence of the signatory’s identity. If the notary has personal knowledge of the identity of the principal, the personal knowledge is sufficient evidence of the identity of the signatory. If the notary has no personal knowledge of the identity of the signatory, the signatory must produce, and the notary must examine, two means of identification of the signatory’s identity. One of the means of the identification must be a government issued identification that bears the photographic image and the signature of the signatory. The second form of the identification must bear the name of the signatory and either contain the signatory’s photograph or signature, or be issued by a government entity. The signatory must also deliver to the notary copies of the front and back of a governmental issued ID (state or federal) bearing the photographic image and the signature of the signatory.
The signatory must promptly deliver to the notary the originals of the executed documents by delivery service, courier, or other means as instructed by the notary.
Once the notary receives the documents and the evidence of identification, a second video conference must take place between the signatory and the notary. During this second video conference, the signatory must verify to the notary that the documents received by the notary are the same documents that the signatory previously executed and sent to the notary. The signatory must also acknowledge the document for the notary. The signatory must disclose to the notary, and the video must show, all people present in the room with the signatory.
Both video conferences must be recorded by the notary, and the records of these conferences must be retained by the notary for a period of 10 years.
The notary must execute an affidavit under the penalties of perjury confirming that: the notary received a copy of the signatory’s identification credential and visually inspected the identification during the initial video conference, unless the signatory was personally known to the notary; that the signatory verbally assented to being recorded during the video conference; that the signatory attested that he or she was physically present in the Commonwealth of Massachusetts; further, the affidavit must note any other persons present in the room when the document was executed and the relationship of these persons to the signatory as disclosed to the notary by the signatory. The affidavit does not need to be recorded but must be retained by the notary for a period of 10 years.
Once all of the above has been completed, the notary must affix their notarial certificate of acknowledgment to the document. The certificate must specify that the document was acknowledged remotely pursuant to the Act. The date of the certificate is the date upon which the notarial act has been completed (although, in a document notarized in connection with a mortgage, the date of the notarization may be the date stated within the body of the document, even if that date precedes the date of the completion of the act), and the county recited in the certificate is the county where the notary is located. Once so acknowledged, the document is deemed to be validly executed, acknowledged, and notarized.