Monday, January 9, 2017

NEW STATUTE REGULATING NOTARIES PUBLIC

Edward J. Smith, Esq., REBA Legislative Counsel

The Massachusetts State House
On October 6, 2016 Governor Charlie Baker signed Chapter 289 of the Acts of 2016, An Act regulating notaries public to protect consumers and the validity and effectiveness of recorded instruments. Expected to take effect in 90 days, the statute is significant for REBA members and their legal staff who are notaries.  This legislation is, in part, a codification of Executive Order No. 455 (04-04), which provided for standards of conduct for notaries (“the Executive Order”).  However, its most serious consequence for misconduct was the revocation or non-renewal of a notary’s commission.  Chapter 289 establishes penalties and rights of action. 

REBA has had a heightened interest in this subject matter on account of the organization’s leadership in opposing the practice of law in Massachusetts by non-lawyers. REBA has resisted the aggressive efforts of settlement service providers and their national trade associations, through litigation and legislation, to control all aspects of mortgage closings in the Commonwealth.  The practice of so-called “witness-only closings,” or “notary closings,” by non-lawyer notaries had spread from other states to Massachusetts.  REBA’s position has been that the home mortgage closing represents the largest financial transaction for most consumers.  Decisions made by home buyers and other mortgage borrowers are particularly susceptible of improper influence, and even predatory behavior, by individuals who are unqualified to give legal advice. 

Chapter 289 codifies the promulgation in the Executive Order, as well as the holding in REBA v. National Real Estate Information Services, 459 Mass. 512 (2011), that a non-attorney notary may notarize documents but may not conduct a real estate closing.  [M.G.L. c. 222, § 17(e)]

Chapter 289 includes most of the Executive Order’s provisions, some in a modified form.  The legislation also added other new provisions in M.G.L. cc. 183 and 222. 

Drawing from the Executive Order, the statute provides:
● Requirements for the notarial seal or stamp (expiration date affixed, exclusive property of the notary, etc.), except that a failure to comply shall not affect the validity of any instrument or the record thereof [M.G.L. c. 222, § 8, as revised]

● Qualifications for a notary; the grounds for which the Governor may decline an application for appointment or renewal of a notary commission, and the seven-year term of office, all as incorporated into the statute [M.G.L. c. 222, §§ 13, 14]

● Types of notarial acts that a notary may perform and prescribed forms for an acknowledgment, jurat, signature witnessing or copy certification [M.G.L. c. 222, § 15]

● Obligations of the notary to determine the appropriateness of the circumstances under which the notary is asked to perform a notarial act (identity and demeanor of the principal, incomplete notarial certificates, no undue influence by the notary, the notary’s relationship to the transaction or to the parties, etc.) [M.G.L. c. 222, §§ 16, 19, 20]

● Prohibition against notarizing signatures of family members shall not apply to notaries who are Massachusetts attorneys, as when the attorney takes the acknowledgement of an employee family member who witnesses a will, as provided in the Executive Order, but also if the family member employed by the attorney is the notary who takes the acknowledgement of the attorney.  [M.G.L. c. 222, § 16(a) (vii)]

● Failure of a document to contain the statutory forms shall not have any effect on the validity of the document or the recording thereof.  [M.G.L. c. 222, §§ 16, 19, 20]

● Prohibition on a non-attorney notary engaging in the practice of law includes any representation in advertising that the notary has specialized legal knowledge, with particular reference to giving advice on matters related to immigration status.  The prohibition shall not preclude a “notary who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field,” nor shall it preclude a notary employed by an attorney or lender from notarizing documents in conjunction with real estate loan closings properly conducted by the employer.  [M.G.L. c. 222, §§ 16, 17, 21]

● Notaries shall maintain a chronological official journal of notarial acts, except that attorneys and their office staff shall continue to be exempt from this requirement.  [M.G.L. c. 222, §§ 12, 22, 24]

● Notary public's commission may be revoked for official misconduct, or for other good cause.  [M.G.L. c. 222, §§ 1, 26]

Chapter 289 has other provisions that did not originate with the Executive Order.  In that regard the new statute also provides:

● Authorization to the Attorney General or a District Attorney to prosecute violations of M.G.L. c. 222, punishable by a fine and/or imprisonment; and new private right of action, to include punitive damages and relief under M.G.L. c. 93A.  [M.G.L. c. 222, § 18]

● Acknowledgments shall pertain to the execution of the document, not the document itself, and can be made by an attorney or representative on behalf of a grantor [M.G.L. c. 183, § 30, as revised]

● A revision to the standard acknowledgment clause, when the document is executed by the signatory in other than an individual capacity, to assist the notary in making clear that the document is the voluntary act of the principal, not merely the signatory [M.G.L. c. 222, § 15(b)] 

● Notaries may vary from the forms set forth in the statute if they are using a form that is authorized or required by statute, regulation or executive order, including one executed in a representative capacity by one who acknowledges his voluntary act but fails to acknowledge the deed or instrument as the voluntary act of the principal or grantor [M.G.L. c. 183, § 42, as revised] [M.G.L. c. 222, §§15(h), 20]

● Failure to state that a document signed by an attorney in fact or in another representative capacity is in fact being signed as the voluntary act of the principal, not merely the signatory, shall not make the document invalid.  [M.G.L. c. 222, § 20(b)(iii)]

● A notary may use an alternative form from another state if the document is to be filed or recorded in or governed by the laws of the other state [M.G.L. c. 222, § 15(i)]

● A notary need not use the statutory form of notarial certificate if a particular printed form contains an express prohibition against altering such form.  [M.G.L. c. 222, § 16(k)]

● The Land Court may issue registration guidelines in regard to required forms [M.G.L. c. 222, §§ 15(h), 20(c)]

● Restatement of the authority of certain commissioned officers in the armed forces to take acknowledgments from persons serving in the armed forces or their dependents [M.G.L. c. 222, § 11, as revised]

Chapter 289 was a high priority for the REBA Legislation Committee, which is co-chaired by Fran Nolan and Doug Troyer.  The Committee succeeded in addressing within the legislation a number of improvident decisions of the Bankruptcy Court.

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