Wednesday, September 6, 2017

“Still a Free Act and Deed”

By Edward J. Smith

It is elementary under Massachusetts law that the grantor of a deed must acknowledge that he has executed the instrument as his free act and deed, or in the words of the statutory form in MGL c. 222,
Section 15 (as appearing in St. 2016, c. 289, sect. 6), “that (he) (she) signed it voluntarily for its stated purpose.”  In order that notice of the conveyance shall be given to all the world, a certificate reciting that the grantor appeared before a notary and made such acknowledgment must be attached to the instrument in order to entitle it to be recorded. M.G.L. c. 183, § 29.  The certificate of acknowledgment furnishes formal proof of the authenticity of the execution of the instrument when presented for recording.  McOuatt v. McOuatt, 320 Mass. 410, 413 (1946)

Some of the most important jurisdictions for commercial and consumer transactions do not require the same statement of voluntariness in the notary clause that is part of the certificate that is prescribed in M.G.L. c. 183, § 29.  For most jurisdictions the obvious purpose of a notary clause has long been to confirm the identity of the party signing the document – most often by production of a valid driver’s license, in the presence of the notary.  However, a failure to have included a specific recital of a “voluntary act,” for a Massachusetts-related document executed in another jurisdiction can be fatal if challenged in MassachusettsSee In re Shubert, 14-01220-JNF (Bankr. D. Mass., Aug. 19, 2015); and In re Resnikov, No. 14-10589-FJB (Bankr. D. Mass., Mar. 29, 2016).  Moreover, some lenders prohibit revisions of any kind in their printed documents.  Thus, it can be problematic to change a notary clause in a lender’s printed document in order to include a voluntariness statement, even if the document is to be executed in Massachusetts.    

One suggestion has been to legislatively give full faith and credit to a document in which the form of acknowledgement in a notary clause complies with the law of the jurisdiction in which it is executed.  Would Massachusetts attorneys and title examiners need to be familiar with the requirements for notary clauses in other states?  Would such a recognition provision create a burden for personnel at the Registry counters to police acknowledgements from other jurisdictions?  The answer to both questions is probably “No.” 

Still, REBA’s Legislation Section opted to propose legislation that would simply remove the requirement to use the voluntariness language (or “free act and deed”) in an acknowledgement, but would retain the recital in the notary clause that confirms the identity of the signatory on the instrument.  In effect, this legislation would also validate notarial acts in other jurisdictions that do not include the recital of a voluntary act in the prescribed notary clause.  It would not weaken the requirement in Massachusetts that the notary must ascertain that the person signing the instrument or document was doing so as his/ her voluntary act and not under duress of any kind.  M.G.L. c. 222, sect. 16(a)(iv) prohibits a notary from performing a notarial act if, “in the notary public’s judgment, the principal is not acting of the principal’s own free will.”  That section would be unaffected by the proposed legislation. 

No fewer than 40 states have adopted the practice in the Uniform Law on Notarial Acts that does not include a reference to voluntariness in a notary clause.  Research that was available to the Legislation Section revealed that virtually all of the jurisdictions that do not require the notary affirmatively to confirm voluntariness have a statutory prohibition, similar or identical to ours, that prohibits the notarization of a signature that the notary believes is made under duress. 

This legislation, Senate Bill 811, would not make it more difficult to challenge in court the voluntariness of the act of a person who has signed an instrument or document.  The recital of “voluntary act” is no more than prima facie evidence, rebuttable by evidence to the contrary.  The most salutary effect for Massachusetts from passage of the proposed legislation would be to validate the acknowledgement in a deed that occurred in a state that did not include the recital of a voluntary act in that state’s prescribed notary clause.   

S.811 was filed by Senator Cynthia S. Creem.  A public hearing on the legislation will be held by the Joint Committee on the Judiciary at the State House on September 12, 2017.  Letters of support may be sent at any time to the Committee’s co-chairs, Senator William N. Brownsberger (D-Belmont) and Representative Claire D. Cronin (D-Easton). 

Edward Smith represents clients, including REBA, as lobbyist and legislative counsel on Beacon Hill. Ed can be contacted by email at ejs@ejsmithrelaw.com.



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