Real estate attorneys push Legislature to allow remote notarizations during pandemic

Move would reassure clients who prefer to stay at home

Not all state require face-to-face real estate closings, as does Massachusetts.Keith Srakocic/Associated Press

Home buyers and sellers face a new reality as the coronavirus pandemic disrupts what should be a busy time of the year. Open houses have been canceled or are being live-streamed. Video tours are quickly becoming the norm. Many agents made this tough transition out of necessity.

There’s at least one part of the process, though, that still requires face-to-face interaction: the closing.

Maybe not for much longer. A coalition of real estate and probate lawyers is pushing for state legislation that would allow law firms to use videoconferencing to complete actions that typically require them to notarize documents: property transfers, home loans, refinancings, wills, trusts.

Much of Massachusetts may be standing still, but these lawyers are still busy, racing to complete deals that were initiated weeks before the raft of shutdowns took effect.

Among the lawmakers championing the cause: Senators John Keenan and Will Brownsberger, both Democrats, and Bruce Tarr, the Republican minority leader. All three signed onto a bill that Tarr just filed. Keenan said he and Tarr are working with their colleagues and advocates to fine-tune the legislation. The change would be temporary — for the length of the state of emergency, plus a few days.

At its essence, the legislation would create a two-step process for real estate transactions: The client’s law firm sends the documents to the client’s house. That person signs the documents, with an attorney or paralegal watching through a video connection. Then the client sends the signed documents, with personal identification attached, to the law firm via overnight delivery. A follow-up videoconference takes place, in which someone at the firm reviews the documents and notarizes them. (Keenan said probate transactions could take place with just a single videoconference.)

In real estate transactions, many states allow this process to take place electronically. But Massachusetts is among those that require an attorney to be closely involved with the closing, including with these in-person meetings.

Social distancing, sanitation, and stay-at-home orders are new complicating factors in what can already be an emotional process.

For real estate attorney Noel Di Carlo at Warshaw, Di Carlo & Associates, that means doing as much as possible virtually before the closing. Di Carlo, a board member of the Massachusetts Real Estate Bar Association, said her Boston firm’s lawyers and staffers maintain their distance from clients when they finally do come in. Everything is wiped down and sanitized. (She said she feels like she’s working in an OR.) Many clients remain concerned, though; some come in wearing masks. So far, none of her deals have been canceled or delayed.

Jay Tuli, president of Leader Bank in Arlington, says some closings are taking place in parking lots now. There’s no reason, given the technology available, that they can’t move online, he said. He’s already seeing a flood of refinancing applications, because of the super-low interest rates and consumers’ increasing need to tap into the equity in their homes for quick cash. Many people are willing to overcome their fears to do refis in person if they can save hundreds a month on their mortgages. But why risk it?

Real estate lawyer Richard Vetstein said the concept of notarizing via videoconference has been discussed within his profession for many years. The pandemic underscores its necessity at a time when people are being urged to stay away from each other. Buyers and sellers could be put in unsafe situations, he said, as could their professional advisers.

Greg Vasil, head of the Greater Boston Real Estate Board, said he and his colleagues initially hoped to persuade the Baker administration to adopt remote notarization via an executive order, as the governors in Connecticut and New Hampshire have done. Advocates for the change in Massachusetts turned to the Legislature when that approach seemed ineffective.

The pace of real estate closings in Massachusetts could tail off soon, if interest wanes among prospective buyers. The market will be slow enough, Vasil said. Requiring in-person meetings that may make buyers squeamish or uncomfortable will just complicate matters.

So what’s next? Keenan hopes to get the bill to Governor Charlie Baker’s desk within two weeks, possibly by attaching it to a bigger piece of legislation. The State House is a lonely place now, with most lawmakers and aides working remotely. The House and the Senate are meeting only in informal sessions — lightly attended meetings normally reserved for noncontroversial issues, at which just one legislator can block a bill. That means no roll call votes, normally necessary to move legislation of this impact and importance.

But Keenan and his allies are working to build a consensus around this issue. These are unusual times, unprecedented even. The Legislature, like the real estate industry, needs to learn how to adapt.