Page 22 - BusinessWest July 10, 2023

Remote Online Notarization
A Sea Change for a Longstanding Legal Requirement
BY SARAH FEDERATION, ESQ. AND JEFFREY FIALKY, ESQ.
“While Chapter 2oftheActsof 2023 revises relevant sections of the act to continue to allow notarization via electronic means, there are notable distinctions in the revisions.”
Most individuals have, at some point, had special documents executed in the presence of a notary public — perhaps in connection with estate
planning, banking, or the purchase or sale of real estate. Massachusetts, like many other states throughout
the country, has a very specific and particular set of statutory requirements for notaries’ public compliance. In fact, to become a notary, individuals must complete an application and obtain signatures of known and respected members of their community, and then swear an oath to abide by Massachusetts law.
Further, the process of a document being certified by a notary likewise follows a strict set of statutory disciplines — most notably, that the notary and the individual executing the document be physically located together, ‘in person.’ This in-person requirement has been part of the statutory regime since the inception of the notary statutes.
However, not unlike the countless other challenges that arose during the COVID shutdown, it became difficult for parties to meet in person for notary purposes. As a result, on April 27, 2020, then-Gov. Charlie Baker signed into law an act providing for virtual notarization to address challenges related
to COVID. The act permitted notaries in the Commonwealth to notarize documents remotely with the assistance of electronic videoconferencing technology, but has since ended and been repealed.
As a result of the temporary change, parties
throughout the Commonwealth undoubtedly became accustomed to the convenience and practicality of remote notary, with protections put in place to ensure the integrity of the process. Recognizing the benefits that came about, the Legislature has enacted a new law that will make virtual/remote notary a permanent feature of the Commonwealth.
Indeed, the Massachusetts Legislature has enacted, and Gov. Maura Healey has signed into law, Chapter 2 of the Acts of 2023, which specifically make extensive changes to notarial law in Massachusetts to become effective on Jan. 1, 2024. The substantive provisions of this law are distinctive from those in the now-repealed acts, and while the specifics of the law are currently being composed by the state regulatory lawmakers, the new law will have certain features.
Under Section 28 of Chapter 2 of the Acts of 2023, a notary public physically located in the Commonwealth may perform a notarial act using communication technology, like Zoom, for a remotely located individual if:
• the notary public has personal knowledge of
the identity of the remotely located individual; has identified the remotely located individual by means of an oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary public and who personally knows the remotely located individual; or can reasonably identify the remotely located individual by not less than
SARAH FEDERATION
JEFFREY FIALKY
22 JULY 10, 2023
<< LAW >>
BusinessWest