A
Path to Electronic Acknowledgements
By
Richard P. Howe, Jr.
As young people who
have known nothing but digital commerce enter the home ownership market, the
conveyancing community in Massachusetts will face increased pressure to leave
paper behind in favor of purely electronic closings. The statutory basis for
this technological transition has been in
place since 2004 with the adoption of
MGL
c.110G, the Massachusetts Uniform Electronic Transactions
Act. Since then, all registries of deeds in the commonwealth have implemented
electronic recording systems. Still, some uncertainly remains, especially
regarding acknowledgements.
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| Richard P. Howe, Jr. |
Earlier this year I
wrote about electronic acknowledgement statutes in other jurisdictions in “Remote
electronic acknowledgments,” published in the March 2017
edition of REBA News. In the same
article, I explained why registries of deeds in Massachusetts should record documents
electronically acknowledged outside of Massachusetts, but not record those electronically
acknowledgement within Massachusetts. The primary basis for that opinion was
that Massachusetts law requires a notary to affix a notary stamp to an
acknowledgement, and that our law provides no electronic equivalent of that
notary stamp.
With the demand for
electronic acknowledgements looming but not yet fully upon us, now is the time
to amend our notary statute to accommodate new technological practices. The
starting point for such an amendment should be a shared understanding of the
purpose of an acknowledgement, particularly with regard to real estate
documents.
In colonial
Massachusetts, registries of deeds and the requirement that real estate
documents be acknowledged arose simultaneously. The purpose of the registry was
to provide a public record of who owned what land as a means of curtailing
secret sales that muddled ownership and created uncertainty in real estate
transactions. The purpose of requiring deeds to be acknowledged before recording
was meant to curtail fraud, either in the guise of a forged signature or of an
actual signature that was later denied by its maker.
Conceived in the
seventeenth century, the rationale for these rules, and the rules themselves,
persist today. Registries of deeds perform the same core function of making
public real estate ownership records, using new technology to do it.
So what is the core
function of an acknowledgement? Primarily, it is to assure the public that the
person who signed a document is who he or she purports to be. In Massachusetts,
a notary does this by personally witnessing the signing of the document while
positively identifying the person who signed it. The notary attests to this by
signing the acknowledgement clause, printing his name and the expiration date
of his notary commission underneath his signature, and then affixing his notary
stamp to the document.
MGLc.222, s.8 requires a notary stamp to include “the notary
public’s name exactly as indicated on the commission; the words ‘notary public’
and ‘Commonwealth of Massachusetts’ or ‘Massachusetts’; the expiration date of
the commission in the following words: ‘My commission expires _____’; and a
facsimile seal of the commonwealth.”
Not to minimize the
importance of the facsimile seal of the commonwealth, but I am not sure how
including that on an inked stamp that anyone, anywhere may purchase in any name
from multiple vendors adds appreciably to the authenticity of a document or the
signature upon it. To me, the basic reason for requiring a notary to include
identifying information such as a printed name and a commission expiration date
in the acknowledgement clause is to help identify and locate the notary if
questions arise about the document.
While the notary stamp
does require those two bits of information, so does the notary clause itself,
which seems to make the notary stamp superfluous. Perhaps it would be more
useful to assign each notary public a unique identifying number, much like an
attorney’s BBO number, and require that number to be included in the
acknowledgement clause in lieu of a stamp. Such a unique number would expedite
the identification of the notary and his whereabouts. It would also be easy and
inexpensive to implement, both on paper and in electronic form.
In reviewing electronic
acknowledgement statutes already adopted elsewhere, it seems that many states
have created a dual commission regime, one for regular notaries, the other for
electronic notaries. Other places require notaries to invest in sophisticated
(and presumably expensive) technology that renders the electronic document
being acknowledged tamper-proof. Perhaps the tasks assigned notaries in other
jurisdictions are more complex than those in Massachusetts, but both of these
practices – a dual commission system and requiring sophisticated software of
electronic notaries – greatly exceed anything now required or expected of
notaries in this commonwealth.
In crafting rules for
electronic acknowledgements in Massachusetts, we should strive to duplicate the
functions now being performed by our notaries while allowing those functions to
be performed on tablets and computer screens, not just on paper. Complex and
expensive systems are not needed to do this, and such additional requirements would
needlessly delay our ability to keep pace with the evolving expectations of
those we serve.
A
regular and welcome contributor to REBA News, Dick Howe has served as register
of deeds in the Middlesex North Registry since 1995. He is a frequent commentator on land records
issues and real estate news. Dick can be
contacted by email at richard.howe@sec.state.ma.us.
