After some delay, on April 23, 2020, the Massachusetts Senate and House passed emergency legislation that allows for notaries public to use electronic videoconferencing to perform acknowledgements, affirmations, and other notarial acts — “An Act providing for virtual notarization to address challenges related to COVID-19” (the “Act”). Once the Act is signed by Governor Charlie Baker as anticipated, Massachusetts will join the majority of states that already allow electronic notaries.

The Act provides that an acknowledgment performed remotely using videoconferencing is valid if: (1) the notary public observes each principal’s execution of a document; (2) both the notary public and each principal are physically located in Massachusetts; (3) each principal, which includes required witnesses, provides the notary with “satisfactory evidence of identity”; (4) each principal makes the acknowledgment, affirmation or other act to the notary public; and (5) a principal causes the executed document to be delivered to the notary public by delivery service, courier, or other means in accordance with the notary public’s instructions. Further, if the document involves “a mortgage or other conveyance of title to real estate,” then “upon receipt of the executed document, the notary public and each principal [must] engage in a second video conference during which each principal verifies to the notary public that the document received by the notary public is the same document executed during the first video conference.”

The Act also requires that each principal swear or affirm under the pains and penalties of perjury that they are physically located within Massachusetts, and disclose the presence of any other person in the room and make that person “viewable” to the notary public. It also requires the notary public to (among other things) make a recording of the videoconference and keep it for 10 years. These provisions would be temporary: they would be repealed three business days following the Governor’s declared end to the COVID-19 state of emergency in Massachusetts.

The Act ensures that necessary business, including the execution of wills and real estate closings, can continue during the pandemic, while simultaneously ensuring that all involved can remain safe while doing so and while also protecting the integrity and validity of the notarized documents for future purposes. We will update this Alert once the law is enacted, as is anticipated.