News and Updates from the Massachusetts Registries of Deeds (podcast)

Remote Video Acknowledgements Have Arrived

Richard Howe

The Middlesex North Registry of Deeds recently recorded a mortgage for property in Tyngsborough. Like 75 percent of all mortgages we record, it arrived electronically. The document was signed by the homeowners, likely at their kitchen table just a dozen miles from the registry of deeds, but it was

acknowledged by a notary public 1,800 miles away in Texas via audio-visual means in accordance with the law of that state.

Massachusetts General Laws chapter 183, section 42 allows an acknowledgement made outside of Massachusetts to be done before a justice of the peace or notary public of the state in which the acknowledgement is made but neither MGL c.183, s.42, nor any other Massachusetts statute or decision that I have found specifies whether the validity of the acknowledgement is governed by Massachusetts law or by the law of the place where the acknowledgement was taken.

The Restatement (Second) of Conflicts of Law, section 223, states “(1) Whether a conveyance transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs; and (2) These courts would usually apply their own local law in determining such questions.” However, this rule is not universal. Comment i. Collateral questions to section 223 of the Restatement says that on matters that are incidental or collateral to the conveyance, the courts of the state where the land is located might apply the law of some other state to resolve the matter. This is especially true “when the concern of that other state in the decision of the particular issue is so great as to outweigh the values of certainty and convenience which would be served by application of the local law of the situs.”

Massachusetts Deed Indexing Standard 2-6 [ http://www.lowelldeeds.com/IndexStnds08.pdf ] states “An acknowledgment made outside of the Commonwealth but within any state, territory, district or dependency of the United States, shall be made before: a justice of the peace, notary public, or magistrate of the state in which the acknowledgment is made . . .” This standard assumes that it is the law of the place where the acknowledgement is made that controls its validity. It also delegates to the person accepting the document (the grantee, not the registry) responsibility for determining whether the acknowledgement is valid under the laws of that foreign jurisdiction.  

When the person executing the document and the notary acknowledging the execution of the document were both located outside of Massachusetts, far from the land affected by the document, these presumptions seemed valid. So did the expectation that courts in this Commonwealth would hold that the acknowledgement was collateral to the conveyance of the land and should therefore be assessed in light of the law of the jurisdiction in which the acknowledgement was taken.

However, technology in the form of internet-based audio-visual applications has brought a new twist to this analysis by allowing the person executing the document to be distant from the person taking the acknowledgement. In the case of our Tyngsborough mortgage with the person executing the document being in Massachusetts and the land being in Massachusetts, the use of a foreign notary seems like a kind of forum shopping that implicates the financial interests of the lender more than public policy concerns of the state of Texas. In these circumstances, a Massachusetts court might conclude that any connection between this transaction and the state of Texas was so tenuous that the entire transaction, including the acknowledgement, should be governed by Massachusetts law. Since Massachusetts law makes no provision for remote video acknowledgements, such a finding would invalidate the acknowledgement, the mortgage itself and, if we may be guided by U.S. Bank v Ibanez, 458 Mass. 637 (2011), quite possibly any other document similarly acknowledged. 

  

Still, before we reflexively shun all out-of-state remote acknowledgements, we should remember that human nature makes us prone to accept the old and familiar and to reject the new and innovative. If the purpose of requiring a real estate document to be acknowledged is to be able to prove that the person who purportedly signed the document did in fact sign it, having a video recording of that act is better evidence than a notary testifying that he has no memory of this particular transaction but always required the person executing the document to be in his presence and to positively identify himself before completing the acknowledgement. In that way, the Texas law may do more to protect the public policy concerns of the Commonwealth than the state’s own notary laws do. 

According to the National Notary Association, 22 states have passed remote video acknowledgement laws. This practice is reaching critical mass across the United States and we here in the Commonwealth can no longer ignore it in the hope that it will just go away. As tempting as it is to urge the state legislature to jump on board the remote notary train without delay, this is a complex area of the law with enormous implications that deserves prompt study and analysis by all concerned as a precondition to legislative action.

Related Articles

Here are links to a couple of my earlier articles that are related to this one:

Electronic Acknowledgements March 9, 2017

https://rebama.blogspot.com/2017/03/electronic-acknowledgements.html

A Path to Electronic Acknowledgements July 28, 2017

https://rebama.blogspot.com/2017/07/a-path-to-electronic-acknowledgements.html

The Foreclosure Crisis Ten Years Later

Richard P. Howe Jr.

The passage of ten years from the last foreclosure crisis has caused our collective memories of the

devastation wrought on our communities by that event to fade. As a Gateway City, Lowell was one of the prime casualties of that crisis with foreclosures peaking at 370 in 2008 – there had only been 19 in 2005.

Besides the disruption to individual families, the volume of foreclosures caused severe disruption to several of Lowell’s neighborhoods. Houses facing foreclosure were often abandoned by their occupants early in the process and remained unoccupied for years as the process dragged on. These vacant properties became magnets for crime with lawless entrepreneurs stripping them of copper and other valuables. Many of the shells that remained became shooting galleries for addicts. This happening to a single home would drag down the value of those surrounding it, creating a downward spiral for the entire neighborhood.

A contributing factor to this collateral damage was the inability of local officials and members of the public to ascertain from the registry of deeds record what was going on with these properties. One way to address for the future this lack of public information about a pending foreclosure would be to require the notice of mortagee’s sale already required by MGL c.244, s.14 to also be recorded at the registry of deeds.

To understand the rationale of this proposal, it helps to review the process of a residential foreclosure. Most begin with the lender filing a complaint in the Land Court in compliance with the Service Members’ Civil Relief Act. The only issue in that litigation is whether the defaulting homeowner is serving in the military. If the homeowner is not, the Land Court issues a judgment in favor of the lender and the lender is free to schedule and conduct a foreclosure auction.

To commence the foreclosure, the lender prepares a notice of sale in accordance with MGL c.244, s.14.  This notice includes the date and time of the auction, the deposit amount required, the legal description of the property and information about the mortgage being foreclosed. The notice of sale must be served on all parties in interest and must be published in a local newspaper for three successive weeks with the first publication at least 21 days before the sale.

On the scheduled date, an auctioneer conducts the sale on the property. The high bidder signs a memorandum of sale and eventually pays the full bid price to the foreclosing lender who in turn delivers a foreclosure deed. This foreclosure deed is recorded at the registry of deeds, however, there is no time limit during which that must occur.

From the time the order of notice is recorded at the start of the process until the foreclosure deeds is recorded at the end of the process, there is an informational black hole about the ownership status of the property. The duration of that gap is a significant amount of time. A study of 200 foreclosure deeds recorded for Lowell in 2008 found that the average time from the recording of the order of notice to the recording of the foreclosure deeds was 208 days, while the time from the actual foreclosure auction to the recording of the foreclosure deeds was 102 days.

While the time between the auction and the recording of the foreclosure deeds has lessened somewhat, it remains long enough to cause problems. For the 83 foreclosure deeds recorded in Lowell between January 1, 2018 and November 30, 2018, for example, it took an average of 77 days from the auction to the recording of the foreclosure deed. The quickest a foreclosure deed was recorded was 18 days after the auction while the longest was 275 days after. Thirteen of the foreclosure deeds – 16 percent – were recorded more than 120 days after the auction.

To provide municipal officials, neighbors, homeowners and members of the public with an easily accessible record of what is happening with a property undergoing foreclosure, MGL c.244, s.14 should be amended to require that the same notice of mortgagee’s sale that is already being served on all parties in interest and published in a local newspaper also be recorded at the registry of deeds for the district in which the land is situated not less than 21 days before the day of the sale set forth in the notice.  This would provide universal notice of the date and time of the auction and allow the public, local government and other parties to learn of the pendency of the auction.

Furthermore, the recorded notice of mortgagee’s sale would clarify the state of title (and state of responsibility for the property) in the weeks and months until the foreclosure deed was recorded. As for the effort needed to comply with this proposal, the notice of mortgagee’s sale already must be created for publication and service so there is no additional effort there and with a recording fee of just $75, the added cost would be minimal in light of the benefit it would provide.

Dick Howe’s column, “From the Recording Desk...,” is a regular feature of REBA News.  Dick 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.

Middlesex North Registry of Deeds Web Site

Middlesex North Registry of Deeds Blog

From the Recording Desk…Thoughts on a New Registry Computer System

By Richard P. Howe Jr.

Just before Memorial Day 2002, a team from a computer company called ACS arrived in Lowell to begin the first-ever Massachusetts installation of the 20/20 land management computer application.

Just a few weeks earlier, a group of registers of deeds assisted by personnel from the Secretary of State’s office had selected 20/20 as the preferred replacement system for registries of deeds in the Commonwealth.

The Middlesex North installation went live on July 1, 2002, and remains in use today. With periodic upgrades, 20/20 is still a reliable system but much has changed in the world of computers over the past 16 years. The time has come to replace 20/20 with a new system built with the latest features and capabilities. The formal selection process has yet to begin but our plan is to make the choice and begin deployment in 2019.

The new system will perform all existing computer tasks better and faster and will add even more capabilities. Here are some of the features I expect to be included.

Full Text Search. Optical Character Recognition (OCR) is an old technology that keeps getting better. OCR converts the print in a digital image into searchable text. Google has scanned millions of books, run the resulting images through OCR, and now makes the content of those books fully searchable. The same can be done with recorded documents. By running record book images through an OCR program, we can make the full text of all documents – the typewritten ones, at least – fully searchable. This would not replace our index but would supplement it, adding a new and powerful search tool for those who use land records.

Index Verification. Having an accurate index is essential to the registry of deeds. The 20/20 system uses a process called “blind rekey verification” which works as follows: At the point of recording, one employee types information from the document into the various fields of the index. Later, a second employee “verifies” those entries by viewing the document and retyping all the index entries without ever seeing what the first employee typed. If both entries match, that document is verified and the process is repeated for the next document. If there is a discrepancy, the verifier can view the original entries and then decide whether to restore them or keep the new values. Although rekey verification is more time consuming than visual verification (something we all call proofreading), it is also thought to be more accurate.

I believe technology is changing that calculation. With electronic recording, which accounts for a majority of all documents recorded at this registry, the customer makes all index entries and the registry clerk processing the document verifies those entries when the document first arrives. To have another registry employee then retype those same entries to verify them a second time seems unnecessary or at least inefficient.

Beyond that, OCR also has a place in index verification. The OCR application can detect names and numbers from the recorded document image, convert them to text and then compare that text to the values entered into the index by the registry employee (with walk-in recording) or the customer (with electronic recording). This verification-by-computer will ensure a high degree of accuracy in the spelling of names. But there is a qualitative aspect to verification – determining the proper document type, for instance – that will still require human judgment. And in those qualitative decisions, it is better that the employee doing the verification actually see what the first employee entered. For these reasons, I believe that the new system should move away from blind rekey verification to a more basic visual verification method operating in tandem with OCR verification.

Standard Searches Across Platforms. The 20/20 system employs two different search applications: one available at the registry of deeds and the other online. Although they pull from the same data and yield the same results, they look and respond differently. As more and more people use the website for their research rather than doing it at the registry, this has become less of a problem. Nevertheless, there should be a single search system and that system should work well on tablets and cell phones.

Hyperlinks. Long before anyone had heard the term hyperlink, the registry of deeds was using them. They were called marginal references. The 20/20 system has an automated marginal reference feature that works well but a new system could do better. For instance, a deed should have a link to the recorded plan that depicts the lot conveyed by the deed which would allow the user to quickly toggle between the deed and the plan or show both simultaneously. The new system will have this capability; 20/20 does not.  

This list is far from exhaustive but it offers some ideas on how a new system might change the way registries of deeds operate. Still, the most important characteristic for a new registry computer system to have would be the flexibility to adapt to technological change that never stops.

Dick Howe’s column, “From the Recording Desk...,” is a regular feature of REBA News.  Dick 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.

Middlesex North Registry of Deeds Web Site

Middlesex North Registry of Deeds Blog

Latitude, Longitude and the Registry of Deeds

By Richard P. Howe Jr.

A newly arisen boundary dispute with a neighbor will frequently prompt a homeowner to come to the registry of deeds in search of his deed and a plan of his property. The expectation that these

Middlesex North Registry of Deeds

documents will resolve the problem is soon punctured by the realization that even the most precisely drawn deed or plan is of limited use unless one can accurately translate a point on the document to a point on the ground.

While there will always be a need for surveyors and civil engineers, a uniform system of corner markers embedded in the ground would do much to resolve these kinds of disputes. But physical markers are expensive to emplace and subject to loss or relocation. Perhaps technology will provide a solution to this problem.

The same GPS technology that guides your car to its destination also has the potential to resolve boundary disputes like the one described above, and to revolutionize land records in the process. GPS devices calculate their location by “triangulating” electronic signals emitted by GPS satellites that continuously orbit the earth. The result is given as the latitude and longitude of the GPS device, numbers often referred to as GPS coordinates.  

So what does GPS have to do with land records? By including the GPS coordinates of corner points and other terrain features on new subdivision plans (and perhaps even on new deeds), the challenging task of aligning a point on a document with a point on the ground will become infinitely easier. Supplied with the GPS coordinates of his lot line, a homeowner with a GPS-enabled smart phone would be able to accurately identify the boundary line on the ground and resolve the dispute.

Consumer grade GPS devices today are only accurate to about six feet, but more expensive military and commercial grade devices are more precise with error rates of only a few inches. History teaches us that technology always gets better and more affordable over time, so soon the GPS capability of the standard cell phone will be as accurate as its more sophisticated counterparts.

While mandating the inclusion of GPS coordinates in subdivision plans and deed descriptions will be a big undertaking, there are other steps registries of deeds should take now to ease the coming integration of real estate documents and mapping technology. A starting point would be to include the MassGIS parcel location identification number – the LOC_ID – in the registry of deeds database. MassGIS, the state agency responsible for geographic information in the Commonwealth, selects a point within each parcel of land in the state and uses the latitude and longitude of that point – its GPS coordinates - for the parcel’s LOC_ID. Because this same ID number is already included in every assessor’s database in Massachusetts, LOC_ID is the digital link that connects mapping and assessing information. By adding LOC_ID to the registry database, deeds and subdivision plans could be similarly linked to mapping and assessing information. Once this LOC_ID link was established, users viewing a deed could, with a single click, display assessor information for the parcel and, with a second click, view the parcel on the state’s mapping system.

  

Creating a new field in the registry database would be relatively easy. Populating that field with data will be the big challenge. One possibility would be to amend the Massachusetts Deed Indexing Standards to require the LOC_ID of a parcel being conveyed to be included in new deeds and subdivision plans and for the registry to capture that information in its database. However, an easier way to capture LOC_ID information might be through the use of standard addresses.

Property addresses have never been a central feature of our system of land records. It was only in the late 1990s that we consistently added street addresses to our database. Even today, address is a flawed method of searching land records.

One way to make property addresses more useful in registry of deeds records is for the Commonwealth to adopt standard addresses. With a list of standard addresses, the address field on registry computer systems could be converted from today’s “enter whatever address is on the document” field to a drop down menu of standard addresses. To be recorded, the property address on a document would have to match an address on the drop down menu of standard addresses. This would increase the accuracy of address searches on registry computer systems and, because standard addresses could be programmatically linked to the corresponding LOC_ID number of the parcel involved, the registry’s LOC_ID field would be automatically populated each time the address field was filled.

While much of the above may seem far-fetched to those in practice today, our records are inextricably linked to land. Anything we can do to better connect registry records to the land depicted in those records will benefit everyone. The exact path we should take is unclear, but technology is propelling us rapidly forward. Now is the time to convene a working group of registry personnel, conveyancers, surveyors, and GIS and IT professionals to help guide us through the integration of registry of deeds records and mapping technology.  

Dick Howe’s column, “From the Recording Desk...,” is a regular feature of REBA News.  Dick 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.

How Technology Has Changed Recording Practices

By Richard P. Howe Jr.

The first decade of the twenty-first century was a time of rapid technological change at the Middlesex North Registry of Deeds. The registry successfully navigated Y2K at the start of 2000, stopped printing record books in 2001, installed the ACS computer system in 2002, implemented full

Middlesex North Registry of Deeds

electronic recording in 2005, made all documents and images from 1629 to the present freely available online in 2006, and implemented while-you-wait scanning for walk-in customers in 2007.

 

History tells us that new technology does not immediately change human behavior. It takes people time to figure out how to use new things. That was the case with the printing press, the telephone and the computer. It was certainly the case with these technical innovations at the registry of deeds, especially electronic recording.

Now, a dozen years after electronic recording’s implementation, its effect on registry operations can be fairly assessed. Electronic recording has drastically reduced the number of people who come to the registry to record documents. Prior to electronic recording, documents came to the registry in two ways: they were carried by customers or delivered by the post office. The best way to illustrate how much things have changed is to compare how documents were recorded in 2009, when electronic recording was still novel, with recording practices in 2017, when electronic recording has reached maturity.

In 2009 (January through November)

·         60,756 documents were recorded

·         7,484 were e-filed (12%)

·         15,582 were mailed (26%)

·         37,690 were walk-ins (62%)

In 2017 (January through November)

·         54,243 documents were recorded

·         29,771 were e-filed (55%)

·         8,441 were mailed (16%)

·         16,031 were walk-ins (29%)

Because registry customers tend to record groups of related documents at the same time, the reduction in foot traffic is best measured by comparing the number of “sets” recorded on particular days. Here are the statistics for the last day of June, which is historically the busiest day of the year at the registry:

On June 30, 2009

·         484 documents were recorded

·         47 were e-filed (10%)

·         66 were mailed (14%)

·         371 were walk-ins (77%)

·         The walk-ins came in 131 sets, with 2.8 documents per set

 

On June 30, 2017

·         541 documents were recorded

·         315 were e-filed (58%)

·         41 were mailed (8%)

·         185 were walk-ins (34%)

·         The walk-ins came in 60 sets, with 3.1 documents per set

This ongoing shift from walk-in to electronic recording has affected the registry in many ways. As the number of walk-in customers has decreased, the need for countertop recording terminals, scanners, and public access computers has been reduced proportionally. Because it takes the registry less time to process electronically recorded documents than walk-in ones, recording wait times have also been reduced.

The growth of electronic recording ratifies its utility and reliability, but there are still some additional features that could improve the system. For example, today when a customer clicks “send to the registry” on an electronic recording, the digital document package is launched into cyberspace, beyond the control of the submitter. The registry sometimes gets frantic calls from customers asking that a package they just transmitted be rejected due to a late-discovered error. A new system might include an electronic “string” attached to a submitted package so that a customer could pull it back right up until the instant it was recorded.

The value of this pull-back feature would be enhanced by a virtual queue that would allow customers to see documents that came before them in the queue. While concern over the pre-recording run down gap has not suppressed the growth of electronic recording, providing customers with more precise information about what is in front of them in the recording queue would help ease lingering concerns.

A third capability that would improve electronic recording would be a real-time communications link, either video or text, between the submitter and the registry clerk. With walk-in recordings, the exchange of information between the customer and the clerk can be an important part of the recording process. Technology could bring that same capability to electronic recording.

While these and other features should be part of the next generation registry of deeds computer system, the pace of future change is largely in the hands of registry users. As more and more lenders, attorneys and homeowners migrate to fully electronic closings – which the registry is even now ready to accept for recording - the volume of electronic recordings will continue to rise, and the amount of mail and walk-in documents will decline even more.

Still, not everyone who owns real estate has a smart phone, or is comfortable using one for complex financial transactions. Consequently, walk-in recordings, and walk-in customer service, will always be an important part of the mission of the registry of deeds.

Dick Howe’s column, “From the Recording Desk...,” is a regular feature of REBA News.  Dick 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.

e‐Recording is Here to Stay: Evolving Technology at the Registries of Deeds (Audio)

A Path to Electronic Acknowledgements

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

Richard P. Howe, Jr.

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.

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. 

Electronic Acknowledgements

By Richard P. Howe Jr.

Several weeks ago, an out-of-state title company sent a letter asking if the Middlesex North Registry

of Deeds would record a mortgage that was acknowledged in Virginia in accordance with that state’s remote electronic acknowledgement law. In Virginia, an authorized electronic notary may take an acknowledgment online using audio-video conference technology, even though the person executing the document is not in the physical presence of the notary.

My initial thought was, “Remote electronic notary? No way!” but I delayed answering the query with an “I’ll have to see the document before deciding” response.

On further review, my opinion has changed. The Massachusetts Deed Indexing Standards say that for a document executed outside of Massachusetts, an acknowledgement may be taken by a justice of the peace, notary public, or magistrate of the state in which the acknowledgement was taken. Implied in that standard is that the acknowledgement was taken in accordance with the laws of that non-Massachusetts jurisdiction. When deciding whether to record such a document, Massachusetts registries just assume compliance with the law of the other jurisdiction and do not verify it since we cannot realistically track the notary laws of every jurisdiction in America.

This outcome also assumes the validity of the choice of law principle upon which the Indexing Standard is based, namely that it is the jurisdiction where the acknowledgement is taken that controls its legality, not the law of the jurisdiction in which the land is located. To my knowledge, no one disputes this, however, I am not aware of any Massachusetts statute or decision that confirms that interpretation.

Applying these standards to the question posed by the title company, I would conclude that since a remote electronic acknowledgement is legal in Virginia, a document acknowledged by that means in that state would be recordable in Massachusetts.

While we would record a document from Virginia that was remotely electronically acknowledged, a document acknowledged that same way in Massachusetts would be rejected. Massachusetts law makes no provision for electronic acknowledgements, either in person or remote. This is so despite our notary laws having just been updated by Chapter 289 of the Acts of 2016 which became effective January 4, 2017.

Although not expressly allowed, would a reasonable interpretation of the new law nevertheless permit electronic acknowledgements to be done in Massachusetts? Section 3 of that law defines acknowledgement as “a notarial act in which an individual, at a single time and place appears in person, before a notary public . . .” There is no ambiguity there. “In person” means just what it says, so remote electronic acknowledgements are clearly prohibited.

But what of an “in person” electronic acknowledgement? Would that be legal in Massachusetts? While not expressly authorizing an in person electronic acknowledgement, Chapter 289 of the Acts of 2016 does not expressly prohibit it.

Section 4 of the new law (which amends M.G.L. c.222, s.8) directs the notary to type his name directly beneath his signature “and affix thereto the date of the expiration of such person’s commission . . .” No problem doing all of that electronically. But the next section requires the notary to have an official seal or stamp and describes what information should be contained on it. While this section does not explicitly require the notary to affix the stamp to the acknowledgement, another section of the law that prescribes the form of the acknowledgment includes a line that is labeled, “official signature and seal of notary public.”

So is a seal required for a valid acknowledgement? The same section of the law that requires the notary to have a seal also states “failure to comply with this section shall not affect the validity of any instrument . . .” and the Deed Indexing Standards state the registry of deeds will record a document even if the acknowledgement does not contain a seal. While omitting the seal from an acknowledgement might cause the notary to run afoul of the new statute, a document lacking a seal would still be valid and could still be recorded.

Still, the wisest course would be to address electronic acknowledgements legislatively and to do so sooner rather than later. As the real estate industry moves aggressively towards transactions that are entirely paperless, Massachusetts registries of deeds and the conveyancing bar should strive to keep pace.

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.