Bulletin: ME2020001

Dear Associates:

On April 8, 2020, Maine Governor Janet T. Mills issued Executive Order 37 FY 19/20, a copy of which is attached here. In the order, the Governor modified certain provisions of Maine law to allow the use of two-way audio-video communication technology to facilitate the social distancing necessary to prevent the spread of COVID-19. Within the order, the Governor suspended provisions of Maine law that require physical presence of the person whose oath is being taken at the same location as the Notary Public or other person authorized to perform a notarial act and any witness to the signing, provided that certain provisions are met.

The Order authorizes remote, not electronic, notarization. All requirements under Maine law pertaining to the taking of sworn statements and acknowledgements by notaries and those authorized to perform notarial acts, other than the requirement to appear in person, remain in effect during the effective period of this Order. The order applies to all provisions of Maine law that require a signature to be acknowledged, witnessed or notarized in person, with limited exceptions, e.g. solemnizing marriages, absentee ballots-see the Order for the stated exceptions.

Stewart is committed to our partners and providing solutions to allow agents to continue closing and insuring transactions. Given the uncertainty of how COVID-19 may impact real estate transactions, and in the interest of providing our Issuing Offices the tools necessary to provide service to their customers, we are implementing the following procedures, outlined below, which are effective April 8, 2020, and, unless sooner amended or rescinded, terminates 30 days after the termination of the COVID-19 state of emergency (Maine declared a State of Emergency on March 15, 2020).

Please note that the manner of audio-video notarization allowed by this Order is NOT the same as a Remote Online Notarization as described in Stewart Bulletins SLS2020003 and SLS2020004. The Order DOES NOT authorize Maine commissioned notaries to conduct Remote Online Notarization.

While this Order is in effect, the enforcement of those provisions of Maine law that require the physical presence of the person whose oath is being taken (“the Signatory”) at the same location as the Notary Public or other person authorized to perform a notarial act (“the Notary”) and any witness to the signing are hereby suspended provided that the following conditions are met:

A. The Notary must be physically within the State while performing the notarial act and must follow any additional guidance for remote notarization issued by the Maine Secretary of State.

B. The act of notarization or witnessing required by Maine law may be completed remotely via two-way audio-video communication technology, provided that:

1. The two-way audio-video communication technology must allow direct contemporaneous interaction between the individual signing the document, (“the Signatory”), the Notary, and any witness by sight and sound in real time (e.g. with no pre-recordings);

2. The signatory must be reasonably identified by the Notary by one or more of the following:

a. Is personally known to the Notary;

b. Presented a valid photo identification to the Notary during the video conference;

c. The oath or affirmation of a witness who:

i. Is in the physical presence of either the Notary or Signatory; or

ii. Is able to communicate with the Notary and the Signatory simultaneously by sight and sound through an electronic device or process at the time of the notarization, if the witness has personal knowledge of the individual and has been reasonably identified by the Notary under clauses a. or b. herein.

3. The Signatory must attest to being physically located in Maine and affirmatively state the name of the county in which the Signatory is located at the time of the execution during the two-way audio-video communication;

4. The Notary and any witness must attest to being physically located in Maine during the two-way audio-video communication;

5. For Wills and Powers of Attorney, the Notary or at least one witness must be an attorney licensed to practice law in the State of Maine;

6. Before any documents are signed, the Notary must be able to view by camera the entire space in which the Signatory and any witness is located, and any person who is present in those spaces must state their name while on video and in clear view of the Notary;

7. The Signatory must affirmatively state on the two-way audio-video communication what document the Signatory is signing and the Notary must be provided with a copy of the document prior to the signing;

8. Each page of the document being witnessed must be shown to the Notary and any witness on the two-way audio-video communication in a means clearly legible to the Notary and initialed by the Signatory in the presence of the Notary and any witness;

9. The act of signing and initialing must be captured sufficiently up close on the two-way audio-video communication for the Notary to observe;

10. Any witness or witnesses required or permitted to properly execute any original document or documents according to Maine Law may similarly witness the signing of the document by the Signatory utilizing two-way audio-video communication described in paragraph 1 and may sign as a witness to the document upon receipt of the original document;

11. The Signatory must transmit by fax or electronic means (which may include transmitting a photograph of every page by cellphone) a legible copy of the entire signed document directly to the Notary and any witness, immediately after signing the document, or, if that is not possible, no later than 24 hours after the Signatory’s execution of the document;

12. The Signatory must send the original signed document directly to the witness within 48 hours (or 2 days) after the Signatory’s execution of the document, or to the Notary if no witness is involved;

13. Within 48 hours after receiving the original document from the Signatory, the witness must sign it and send it to the second witness, if any, or to the Notary if no other witness is involved. The official date and time of each witness’s signature shall be the date and time when the witness witnesses the Signatory signature via the two-way audio-video communication technology described in paragraph 1 above;

14. Upon review of the original document and satisfactory comparison with the faxed or electronic document provided on the date of signing, the Notary shall notarize the original document within 48 hours of receipt thereof, and the official date and time of the notarization shall be the date and time when the Notary witnessed the signature via the two-way audio-visual technology and shall add the following language below the Notary and or witness signature lines: “Notarized (and/or Witnessed) remotely, in accordance with Executive Order 37 FY 19/20”; and

15. A recording of the two-way audio-video communication must be made and preserved by the Notary for a period of at least 5 years from the date of the notarial act. The Notary shall provide a copy of the recording to the Signatory and the Secretary of State upon request.

C. Any document that is required under any law of the State of Maine to be notarized “in the presence and hearing” or similar language of a Signatory, and that is signed, notarized, or witnessed in accordance with the terms of this Executive Order shall be deemed to have been signed and/or notarized in the presence and hearing of the Signatory.

D. Nothing in this Order shall require a Notary to perform remote notarization.

Additional Underwriting Guidelines

During the pendency of the Order, issuing offices may perform and accept audio-video notarizations which fully meet the requirements set forth in the Executive Order and subject to the following additional underwriting guidelines:

1. The transaction must be a cash sale/purchase; purchase money transaction; or a transaction involving a refinance, either with or without cash-out with a policy amount of $1,000,000 or less. Commercial transactions or transactions for amounts in excess of $1,000,000 may be considered, but the issuing office must obtain specific Stewart Underwriting approval.

2. The manner of audio-video notarization and the audio-video communication system utilized must fully comply with the provision of the above Order and the following language must be added below the Notary and or witness signature lines: “Notarized (and/or Witnessed) remotely, in accordance with Executive Order 37 FY 19/20”.

3. Parties, including lender, must authorize in writing the remote notary process. Click here for a sample STG Consent form;

4. The issuing agent and/or approved attorney must confirm that the municipal office will record documents notarized using the remote notarization process;

Although the Order does not specifically identify any audio-video communication system that fully complies with the Order, there are several platforms which may satisfy the necessary real-time audio-video communication, recording and storage requirements. As a courtesy to issuing offices, below is a list of service providers which offer audio-video communication platforms. Please note that the list is not conclusive, and that Stewart Title Guaranty Company has not vetted and makes no representations regarding the suitability, effectiveness or security of any audio-video communication system.

Microsoft Teams: https://support.office.com/en-us/article/record-a-meeting-in-teams-34dfbe7f-b07d-4a27-b4c6-de62f1348c24

GoToMeeting: https://www.gotomeeting.com/features/online-meeting-recording

Cisco Webex: https://help.webex.com/en-us/nzpa89j/Manage-Cisco-Webex-Meetings-Recordings

This Bulletin is not intended to direct an issuing office’s closing practices or change the provisions of any underwriting agreement. In addition, this Bulletin is not intended to modify or replace the provisions of any other Stewart Bulletin including, but not limited to, Bulletins SLS2020003 and SLS2020004 regarding Remote Online Notarization.

Please note that remote notarization and Remote Online Notarization are different processes with different requirements. 

If you have any questions relating to this or other bulletins, please contact Michelle Radie-Coffin at michelle.radiecoffin@stewart.com.

For on-line viewing of this and other bulletins, please log onto www.vuwriter.com.