Electronic Signatures by Municipal Boards

Massachusetts Deed Indexing Standards 2018

April 2020 Amendment

The Massachusetts Registers and Assistant Registers of Deeds Association has adopted the following Amendment to the Massachusetts Deed Indexing Standards 2018. This amendment is effective April 17, 2020.

13-7. Electronic Signatures by Municipal Boards – The following procedure is recommended for municipal boards and committees that wish to execute documents in accordance with Massachusetts General Laws chapter 110G (Uniform Electronic Transaction Act) which documents are then to be recorded at the registry of deeds.

1.       At a properly called meeting, the municipal board or commission should formally vote that the board recognizes and accepts the provisions of M.G.L. c.110G regarding electronic signatures and that its members will henceforth execute documents either with electronic signatures or with wet ink signatures and that both will carry the same legal weight and effect.

2.       The board then records at the registry of deeds a Certificate of Vote that provides the language of the motion that was made regarding electronic signatures and attests to the vote taken, and obtains the Town Clerk’s certification.

3.       Then, board members may cause their electronic signature to be affixed to permitting or compliance documents that have been approved by a board vote. Such electronically signed documents should also include a statement that the signatures are made in accordance with M.G.L. c.110G and pursuant to the board’s electronic signature authorization vote recorded on [DATE] in [BOOK and PAGE] at the [NAME OF REGISTRY] Registry of Deeds.

4.       Any document so executed shall be accepted for recording at the registry of deeds either in electronic form or as a paper print of the electronically executed document.

NOTE - The Massachusetts Land Court does not permit this procedure so electronic signatures may not be used on any REGISTERED LAND documents. Please see the Land Court website for further guidance.

Remote Video Notaries Coming to Massachusetts?

In my daily update posted last night, I added some thoughts on a new bill pending in the legislature that would permit notaries public in Massachusetts to take acknowledgements by video rather than in person. This move seems to be gaining considerable attention in the media, so I decided to copy and paste what I wrote about remote video notarization into a separate post:


Also, State Senator Bruce Tarr and many co-sponsors have filed legislation that would permit a type of remote video notarization. In the 20 or so states that already allow remote video notarization, most contemplate that being done with an electronic document. The person signing has the document on a tablet or mobile phone and then activates the device's camera so the notary can see the person electronically signing the document. The video of the procedure is all archived in case questions arise, and the fully executed electronic document can then be whisked via the internet to the proper registry of deeds for electronic recording.

The Massachusetts proposal, SD. 2882, is kind of a hybrid of the traditional notarial act that takes place by signing a piece of paper with pen and ink and the remote video laws of other states. The Massachusetts law seems to require a lawyer to (snail)mail or courier a paper document to the client who would then sign it while on video camera with the lawyer watching the video feed from a distant location. Once the paper document was signed, the client would then mail or Fedex it back to the lawyer. The lawyer, once receiving it, would sign the paper document with pen and ink and then record it via electronic recording with the registry of deeds.

I've long had an interest in this area and have previously written about in-person electronic acknowledgements and also about remote video acknowledgements.

My experience has been that many lawyers who work in this field have long seen remote video acknowledgements as an existential threat to their business model and have therefore done everything possible to prevent such legislation from moving forward in Massachusetts. This bill seems precisely crafted to protect the interests of those lawyers while at the same time allowing them to continue doing business notwithstanding the extreme distancing requirements demanded by the pandemic. In other words, it's unlikely that they will try to kill this bill.

I find nothing objectionable about this bill and do hope it's enacted because by keeping people separated it will reduce the risks of infection spread. But hopefully this is more of a foot-in-the-door for remote video acknowledgments rather than the first and final move in that direction in Massachusetts.

E-Filing During Pandemic

Good morning. During the pandemic, we urge all eligible registry users to file electronically. If you are not already an e-file customer, below is  information from two companies that provide the service.

March 16, 2020 | 3:30 P.M. MT COVID-19 Preparedness: Electronic Recording

In these unprecedented times, we want to help you limit customers coming into your county office and help your staff to effectively work from home. Electronic recording eliminates the need for document submitters to visit the courthouse and mail handling. Receive mortgage, deed, and other documents securely online through Simplifile. Your staff can review, stamp or reject, and record documents electronically from any location. E-recording is free for counties. We’re ready to get you set up quickly. Learn more here about e-recording with Simplifile. Feel free to call us at 800.460.5657 with any questions or to get started. We're here to help. xxxxxxxxxxx CSC

Hi Richard, In the event that your office limits or suspends walk-in traffic, or implements remote working locations, please provide your Document Submitters with this information to set-up eRecording as an alternative solution: CSC® eRecording CSC provides a web-based eRecording solution that enables submitters to electronically record real estate documents. Phone: (866) 652-0111 Email:  erecording@cscglobal.com Website:  erecording.com *many offices have this posted on their websites Our thoughts and prayers are with you all during this unsettling time. Let us know if we can assist you in any way.  Sincerely,  Joe Joseph DeLuca National Account Manager/eRecording Solutions Phone 1: 1 302-636-5844 Office Phone 2: 1 302-803-0924 Mobile Joe.deluca@cscglobal.com CSC® erecording.com - Check out this great new website! We are the business behind business

Recording copies instead of originals

A longstanding rule at the registry of deeds is that only original documents (or a copy certified by another registry) may be recorded. This rule is codified by Massachusetts Deed Indexing Standard 8-4 and is strictly enforced at registries throughout the Commonwealth. However, at a time when the majority of documents are recorded electronically and when some documents never even exist in paper form, it may be time to reconsider this rule. 

The proper starting point for reconsidering a longtime standard is to ask what purpose is served by the rule When a person presents a document for recording, that person having custody of the original provides some authentication of the document. If the item presented is clearly a copy, it invites the question of what happened to the original. While there would undoubtedly be some innocent reasons for the original not being present, there could be some not-so-innocent reasons too. While it is also true that an original is better evidence in adjudicating a claim of forgery, the registry keeps only a copy and returns the original and so would not have possession of it when a claim of forgery arose. 

However, the authentication function of the original was far greater when documents were created with typewriters and ink pens. Both left discernable impressions in the surface of both sides of the page which made a document’s identify as the original version easier to determine. But in the age of laser printers and sophisticated copiers, decided whether a document is an original or a copy is more difficult to do.

The excellent output of today’s copiers has undercut another reason to require the original document for recording. In the age of carbon copies or even in the infancy of copier technology, copies tended to be poor and difficult to read. Having possession of the original document permitted the registry to create the best copy for the official records. Today, the distinction in legibility between the original and the copy has largely disappeared which takes away another reason for refusing to record a copy.

Finally, there is an argument to be made that the Uniform Electronic Transaction Act authorizes a copy of a document to be recorded. That law states that the electronic version of a document fulfills any law that requires a document to be in writing. Put another way, an electronic document is just as good as an original paper document. If you think of a photocopy as the electronic version of an original document that is then printed on paper, there is little reason to refuse to record such a document.

As technology and business practices continue to evolve and all-electronic documents become commonplace, our entire concept of “original” will need to change. In an electronic world where one copy of an electronic document is indistinguishable from another, there is no original document. The issue really is the intent of the person “signing” the document. Whether it is a traditional “wet” signature or some mark or symbol made on an electronic tablet, the relevant question is did the person intend that mark to constitute his signature. The answer to that question will depend on all the circumstances surrounding the execution of the document, not whether the document contains an original cursive signature made in ink on paper.

Electronic Recording in 2016

Electronic recording continued to account for an increasingly large percentage of recordings in 2016. Of the 65,521 documents recorded last year, 33,620 (52%) came to us electronically. More than two-thirds of all mortgages (8,615 of 12,639 or 68%) come to us electronically, as do 60% of mortgage discharges (8,033 of 13,398).

Since the start of electronic recording, the percentage of documents filed that way has continued to increase each year. Here are the annual percentages:

2005 -  1%
2006 -  3%
2007 -  5%
2008 -  7%
2009 - 12%
2010 - 14%
2011 - 30%
2012 - 34%
2013 - 38%
2014 - 38%
2015 - 45%
2016 - 52%

Electronic Recording

Electronic recording volume continues to hold steady at the Middlesex North Registry of Deeds. From January through November, 51 percent of all documents were recorded electronically (30,327 of 59,101). Here are the percentages of electronic recordings for each month:

January - 49%
February - 46%
March - 50%
April - 50%
May - 50%
June - 51%
July - 50%
Aug - 52%
Sept - 53%
Oct - 55%
Nov - 55%

Mortgages are the documents most likely to be recorded electronically, with 68% of those recorded thus for in 2016 coming to us by that means. Discharges follow close behind at 59% recorded electronically, and 49% of deeds are recorded that way.

New Notary Law and Electronic Documents

Earlier this month, I wrote about the new Massachusetts law on notaries public (Chapter 289 of the Acts of 2016). The law covers many things but is silent on electronic acknowledgements which I believe is an unfortunate oversight rather than an indirect rejection of the concept.

Electronic recording has been embraced by our users. Fifty percent of all documents and sixty-five percent of all mortgages at this registry are recorded that way. The march towards electronic recording will inevitably lead to electronic documents and electronic signatures, both of which were legalized back in 2007 by the Massachusetts Uniform Electronic Transactions Act (MGL ch. 110G).

An impediment to electronic documents (as opposed to paper documents that are then scanned) is the silence on our notary public rules on electronic acknowledgements. There's no point to having a client sign a document that only exists as an image on a glass screen if the notary public must affix an inked stamp to it.

The solution to this problem can be a very simple one. Just permit the notary to sign the document electronically and require the notary's name, office, jurisdiction of appointment, and expiration date of commission to also appear. The only thing that can't be done electronically is to put all that information in the form of a stamp that also includes the seal of the Commonwealth.

Much that has been written about electronic notaries dives deeply into complex technologies that would, among other things, render the acknowledged document tamper-proof and unalterable. While such a feature would be desirable, it is not essential to fulfilling the core function of a notary in taking an acknowledgement, which is to certify that the person signing the document is indeed the person he purports to be. All of the aspects now part of the notarial act - having the person signing the document appear in person before the notary, having that person identify him or herself with a drivers license or other reliable form of identification, can easily be carried over to the type of electronic notarization contemplated here.

Electronic Recording Statistics

Here are some statistics for electronic recording for the first three months of 2016:

In January, 49% of all documents (2130 of 4378) were recorded electronically. The busiest efile day was January 12, when 82% of all recordings (157 of 191) were electronic.

In February, 46% of all documents (1945 of 4236) were recorded electronically.

In March, 50% of all documents (2465 of 4945) were recorded electronically.

Electronic Recording Statistics

In June, 43% of the documents we recorded were sent to us electronically.  In real numbers, 2886 documents were recorded electronically out of a total of 6707.  That translates into a daily average of 131 out of 305 documents coming to us via electronic recording.

The percentage recorded by electronic recording for the first half of 2015 was 44% or 12252 documents out of 27906.  The six month daily average would therefore be 103 electronic recordings out of a daily total of 235. 

A consistent 20% of our recordings come through the mail which would be an average of 47 documents per day.  That would leave 85 documents, or 36% recorded by walk-in customers.

Electronic Recording Volume

The month of March continued our streak of electronic recording volume in excess of 40% of all recordings.  Electronically recorded documents accounted for 44% of all recordings in January, 47% in February, and 42% in March.  Of the 4796 documents recorded in March, 2007 were recorded electronically.  That works out to a daily average of 91 electronic documents to 127 walk-ins or mail-ins.

For the 1st quarter of 2015, we recorded a total of 11,610 documents by all methods; 5108 of them were recorded electronically which is 44%.  Discharges accounted for 1177 of the electronic documents; deeds 462, mortgages 1484, and all other types 1985. 

From all sources we recorded 1215 deeds during that time period .  The 462 that were recorded electronically represent 38% of the total.  Mortgages were much more likely to be recorded electronically: 1484 of 2334 (64%) mortgages recorded came to us electronically. 

Electronic Recording Update

Snowy weather must be conducive to electronic recording.  For 2014, 38% of all documents recorded at Middlesex North came through electronic recording (the same percentage as in 2013).  For January 2015, however, that number rose to 44% and in February, it hit 47%.  Not only were there many days of snow during this period but the residue piled in banks along the streets has made parking a challenge ever since the first big snowstorm.  Given these circumstances, being able to record from the relative comfort of one's own office seems like a good enough incentive to shift to electronic recording.

2014 E-Recording Recap

The number of documents recorded electronically dropped in 2014 compared to 2013, but that was a function of the drop in overall recording numbers – they were down 20% overall – since the percentage of documents recorded electronically held steady at 38%.  Having started electronic recording in 2005, we now have ten years of experience with the technology.  Here is how it has grown over time, showing the year, the number of documents recorded electronically, and the percentage of all document recordings the e-file total constitutes:

2005 – 1057 – 1%
2006 – 1871 – 3%
2007 – 3491 – 5%
2008 – 3956 – 7%
2009 – 8168 – 12%
2010 – 9013 – 14%
2011 – 14736 – 30%
2012 – 24210 – 34%
2013 – 25251 – 38%
2014 – 20306 – 38%

Of the 20,306 documents recorded electronically last year, 2169 (11%) were deeds, 5260 (26%) were mortgages, 4729 (23%) were discharges, and 8146 (40%) were “other.”  For documents recorded by all means – electronic, by mail, and walk in - the percentage breakdown changes.  Of the 53584 documents recorded last year, 12% were deeds, 17% were mortgages, 19% were discharges and 52% were “other.”  This suggests that when the refinancing market rebounds the percentage of documents recorded electronically will increase significantly since mortgages and mortgage discharges are more likely than most other documents to be recorded electronically.

The busiest days for electronic recording in 2014 were September 30 (182 documents), May 30 (171 documents) and June 30 (169 documents) came in by that method.  The largest percentage of electronically recorded documents (58%) came in on June 4, October 3 and November 5.  Electronic recordings accounted for 50% or more of daily recordings on 25 of the 247 recording days in 2014.