April 9, 2020
Maine’s Governor Mills Issues Executive Order Enabling Use of Remote Notarization

In the wake of the COVID-19 pandemic, many state leaders and title professionals are looking for a solution to enable real estate transactions to continue to close. Such solutions include emergency rules and executive orders to permit the use of remote notarization in the state. Under Executive Order 37 FY 19/20, Maine’s Governor, Janet Mills, authorized the use of audio-video technology to conduct a notarization, under the following conditions:

  • The notary must be physically present in Maine while performing the notarial act;
  • The signatory must be physically present in Maine and state the county in which he/she is located during the audio-video communication;
  • The documents must be signed and notarized in wet ink;
  • The signatory and the notary must be able to communicate simultaneously by sight and sound through an electronic device or process in real time during the notarization;
  • The signatory must provide a copy of the document to be signed and notarized to the notary prior to signing;
  • The notary has identified the signatory through:
  • Personal knowledge of the individual;
  • Presentation of a valid photo identification during the video conference; or
  • An oath or affirmation of a witness; and
  • The notary must be able to view by camera the entire space in which the signatory is located, and any persons located with the signatory must state their name on camera while in clear view of the notary.

Prior to signing a document, the signatory must affirmatively state what document he/she is signing, and the signatory must capture the act of signing and initialing to allow the notary to sufficiently observe the signing process.

Immediately upon executing the document, the signatory must transmit to the notary and any witness a copy of the signed document by fax or electronic means, which can include transmitting a photograph of every page of the document by cellphone. Such transmission must happen within 24 hours of execution.

Please note that, for any Wills or Powers of Attorney executed under the Executive Order, the notary or at least one witness must be an attorney licensed to practice law in Maine. For additional requirements relative to witnesses, please refer to the Order.

Within 48 hours of receiving the document, the notary must notarize the document using the date the notary witnessed the signatory’s execution of the document via audio-video technology. In addition, the notary must add the following language below the notary and/or witness signature lines: “Notarized (and/or Witnessed) remotely, in accordance with Executive Order 37 FY 19/20.”

The notary must record the audio-video communication and retain the recording for five (5) years. For options of vendors that offer video conferencing and secure storage options, please refer to our Technology Vendor List.

Please note that Maine continues to require the use of wet signatures on documents notarized under Executive Order 37 FY 19/20. Documents executed using electronic signatures and/or electronic notarization pursuant to another state’s notarial laws may not be acceptable under Maine law.

This Executive Order is effective immediately as of April 8, 2020 and will remain in effect until thirty (30) days after the termination of the COVID-19 state of emergency, unless sooner amended or rescinded.

Your professional liability or errors and omissions policy could contain specific exclusions for claims based upon acknowledgments taken outside the physical presence of the signatory. Be sure to check your policies to determine if they contain any exclusion of coverage in this area and, if so, take proper measures to protect yourself or find an alternative safe way to close your transactions. If you are unsure whether your policies provide such coverage, you should contact your broker and inquire.

It is clear that we will need to adjust our business practices to allow real estate transactions to continue during this unprecedented time. However, it is imperative that we continue to employ safe and trusted methods of executing documents, particularly those affecting real estate title. CATIC is committed to helping its agents through this uncertain time and will be providing further guidance detailing how agents can comply with this Executive Order in the coming days. Should you have any questions about this Order, please contact Bill Walsh, Maine State Manager and Counsel, or Greg Lestage, Maine Underwriting Counsel. We look forward to continuing to serve you and your clients throughout this crisis and beyond.
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