Bulletin: MA2020006

Dear Associates:

The purpose of the following bulletin is to explain and clarify the distinct authorized methods of taking a notarial act in the Commonwealth of Massachusetts and which methods are acceptable in order to issue policies of title insurance for property located in Massachusetts.

Traditionally, Massachusetts has limited notarial acts to those where the signer at "a single time and place appears, in person, before a notary public.” Recently, Massachusetts has enacted temporary legislation to address the challenges related to COVID-19. This temporary law allows for the use of audio-video conferencing technology to facilitate the notarial act in limited circumstances. Among other requirements, which are all more fully set forth in our bulletin, MA2020004, the law permits notary publics who are either Massachusetts attorneys or paralegals supervised by a Massachusetts attorney to complete a notarial act on a document relating to real property where a person appears before the notary via a live audio-visual conference. A notarial act taken pursuant to the temporary legislation is not a Remote Online Notarization (“RON”), rather it is a type of notarization referred to generally as a Remote Ink-Signed Notarization (“RIN”). A key distinguishing feature of a RIN notarization under the temporary Massachusetts legislation is that the documents which are being notarized require the wet signature of the signer and the notary public.

RON is not currently permissible under the laws of Massachusetts and policies of title insurance may not be issued insuring a transaction wherein the vesting deed or mortgage being insured have been notarized via RON.

Under Massachusetts law, a defectively acknowledged mortgage is not legally entitled to be recorded, and even if it is accepted by the Registry for recording, the mortgage does not, as a matter of law, provide constructive notice to future purchasers. Consequently, the mere recording of a mortgage does not indicate a validly notarized document. Further, Massachusetts requires strict formalities in the execution of acknowledgments. The failure to comply with acknowledgment requirements can have a significant detrimental consequence if a borrower files for bankruptcy. Additionally, an acknowledgment under Massachusetts law requires the signer to specifically acknowledge that the signature on the document was voluntarily affixed by the individual for the purposes stated within the document or that the signature on the document was the individual’s free act and deed.  If signed in a representative capacity there are additional requirements, including that the signer be sufficiently authorized and that the acknowledgment specify execution of the document was the voluntary act of the grantor. The requirement that the document was signed either voluntarily or as the grantor’s free act and deed is not universally required by all jurisdictions and therefore, acknowledgments taken in other states which do not use the Massachusetts acknowledgment language may not comply with Massachusetts law.

Therefore, National Bulletin SLS2020004, relating to Remote Online Notarization, is not applicable in Massachusetts at this time to the extent that it authorizes remote online notarization for documents to be recorded that do not meet the requirements of Massachusetts law.

Stewart will continue to insure transactions based on documents wherein the notarial act was completed in compliance with the temporary law, Chapter 71 of the Acts of 2020 (while the temporary law remains in effect), and Stewart’s underwriting requirements, as outlined in MA2020004, as well as where the notarial act is completed in-person that conforms to the specific Massachusetts requirements. Note that a document which purports to be notarized pursuant to Chapter 71 of the Acts of 2020, after the temporary legislation has expired (scheduled to occur three (3) business days after Governor Baker’s March 10, 2020, state of emergency is terminated) is not considered to be legally acknowledged. After the legislation has expired, only a document acknowledged in person is acceptable.

Should your title search disclose documents notarized using RON or which contain a facially deficient acknowledgment clause, please contact a Massachusetts underwriting counsel or massuwing@stewart.com for approval to insure a subsequent transaction.

If you have any questions relating to this or other bulletins, please contact your Massachusetts Underwriting partner at massuwing@stewart.com.

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