On April 8, 2020, Governor Gretchen Whitmer signed Executive Order 2020-41 (the “Order”), which temporarily relaxes strict compliance with various state electronic transaction acts. According to the Governor, “[I]t is reasonable and necessary to provide limited and temporary relief from certain rules and requirements so as to enable and encourage the use of electronic signatures, remote notarizations, remote witness attestations and acknowledgments, and remote visitations. This will help ensure that necessary transactions and interactions may continue to occur during this time of crisis without unduly compromising the health and safety of this state and its residents.” State Bar of Michigan President Dennis M. Barnes lauded the Order’s execution. “The problem of how to validate critical legal documents in a quarantine environment was a difficult and crucial issue,” he said. “The State Bar thanks the governor for the thorough and thoughtful guidance provided in the executive order.”
The Order will make it much easier for electronic transactions to take place while Michigan residents and businesses deal with the impact of the COVID-19 pandemic. Real estate closings, for example, often require both parties to sign documents in the presence of a notary. This requirement may prevent parties that do not have easy access to a notary from timely closing. However, the Order states that any notarial act that is required under Michigan law may be performed by a notary who currently holds a valid notarial commission in this state utilizing two-way audiovisual technology, provided that certain conditions are met. In addition, financial institutions and registers of deeds must not refuse to record a tangible copy of an electronic record on the ground that it does not bear the original signature of a person, witness, or notary, if the notary before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record.
Notwithstanding, some national lenders have already communicated they will not rely on alternative notarization provisions established by state emergency orders, and many are still requiring “wet-signed” documents. As such, parties to a real estate transaction looking to take advantage of the Order’s remote notarization provisions should communicate their intention to do so with their lender to ensure that the lender will rely on any remotely notarized documents under the Order.
The Order took effect upon execution and is currently set to continue only through May 6, 2020 – although any extension to the stay-at-home order will almost surely come with an extension of this Order and all other COVID-19 relief orders. If you have a real estate closing scheduled during this difficult time and do not have readily available access to an in-person notary, contact Hilger Hammond to discuss the Order’s two-way audiovisual technology conditions to ensure your documents will be executed property and legally enforceable.
A link to the full Order can be found here: Executive Order 2020-41
You can contact me to discuss remote notarization or any other provision of the Order via email at jwheeler@hilgerhammond.com or by phone at 616.458.3600.
