There is No Better Time to Modernize MA Notary Public Laws to Permit Remote Electronic Notarization

Due to the outbreak of of the novel coronavirus (COVID-19) in Massachusetts, remote notarization has now become essential. Massachusetts does not allow remote notarization of documents. This means that customary real transaction documents, such as mortgages and affidavits, or estate planning documents, as such as last wills and powers of attorney, cannot be signed outside the physical presence of a Massachusetts Notary. In other words, a prospective signor to a document must travel to and find a notary public that can physically witness the signature of the signatory and issue a “wet” acknowledgment with a signature and stamp.

Prior to the outbreak, the need for remote notarization was based on convenience and efficiency, which would in effect modernize notarization. This convenience would provide signatories and notaries the option to obtaining and providing notarial acts from their desks (or living rooms) rather than having to travel to a different location and meeting socially. Now, with the present outbreak, Notaries Public must be able to safely continue their duties while maintaining social distance. Unfortunately, the archaic Massachusetts Notary Public laws offer no flexibility or exceptions for in-person notarization, and are incompatible with social distancing.

Notarial duties and requirements are governed by Massachusetts statute, M.G.L. ch. 222. Specifically, Section 16 (a) states that “A notary public shall not perform a notarial act if: (i) the principal is not in the notary public's presence at the time of notarization. . . .” M.G.L. ch. 222, s. 16(a) (2020). The language of the statute is unambiguously clear: A Notary may not witness and acknowledge a signature outside of her or his physical presence.

As an alternative to a personal appearance before a Notary Public, some states (other than Massachusetts) have adopted remote notarization. This allows a prospective signatory to appear before the Notary with audio-visual technology via the Internet. All that is needed is a computer with a camera (or web cam capable device, such as a smart phone or tablet), video conference and document review application and an Internet or Cellular connection. The Notary then can affix an electronic notarization to the document, which would have the same validity and effect as a “wet” notarization. This virtual / electronic appearance can be combined with electronic signatures that can be unique and verified for the document signatory. For example, there are several leading national mortgage companies that presently offer 100% electronic closings for residential real estate transactions in other states.

Last year, Mr. Carmine Lawrence Gentile, Representative for the 13th District of Middlesex, introduced H. 3293, An Act Modernizing Notary Services. This Bill seeks to update the Notary statute by providing signatories a means to appear before a Notary, while verifying identification and making the appropriate affirmations concerning the document to be signed. This Bill also allowed Notaries to affix an electronic Notary seal Presently, this Bill was scheduled for hearing in September 2019 and the public records do not reveal any further action or history. For complete text of the Bill, please visit: https://malegislature.gov/Bills/191/H3293/BillHistory

There is no better time than now for Massachusetts to modernize the notary statute. Admittedly, there are much more critical areas of concern for our State and Local governments, health care workers, grocery and pharmacy employees, and first responders right now. However, the social distancing rules are entirely incompatible with existing notary laws, and that makes it nearly impossible for real estate, estate planning and other attorneys to maintain a safe social distance from their clients. The same applies to non-attorney Notaries. The hope is that at the other end of the COVID-19 crisis our State government steps up to reform existing Notary laws for the safety, convenience and efficiency of all persons requiring Notary Public services. To contact and express support of the pending H. 3293 Bill, you may contact Representative Gentile at carmine.gentile@mahouse.gov.

Northshore Legal LLC of Lynnfield, MA is a boutique law firm and is led by Stefan E. Cencarik, Esq. We specialize in residential and commercial real estate, business transactions, corporate law, and probate. We can be reached at 781-463-6063 or consultation@northshore.legal.