Michigan Governor Encouraging the Use of Electronic Signatures, Remote Notarization and Witnessing during the Covid-19 Pandemic

Governor Whitmer’s latest Executive Order in effect through May 6, 2020 allows any notarial act required under Michigan Law to be done using two-way video technology.  As a result, a financial institution, title insurer, or a register of deeds is prohibited from denying a copy of an electronic record if a notary certifies it under the terms of the Order. (The only exception will be if state law specifically requires a physical signature for a certain transaction.) This action suspends strict compliance with the rules and procedures of the Michigan Law on Notarial Acts (MCL 55.261 et seq.).

Executive Order 2020-41 also enables the use of acknowledgements, remote witness attestations, and visitations. This will temporarily ease the burdens of requiring in-person actions to occur during the pandemic. It further suspends applicable requirements of both the Michigan Uniform Electronic Transactions Act (UETA) and the Uniform Real Property Electronic Recording Act (URPERA).

These courses of action will reduce unnecessary in-person contact while still allowing necessary legal transactions to occur. However, the Order is limited in scope and does not specifically address such matters as collecting signatures on petition proposals for election purposes. That methodology is now being tested by political groups seeking electronic voter signatures through an online system for initiatives that could end up on the November ballot. The activist groups contend that, per the existing provisions of the UETA, that the statute broadly allows for electronic signatures any time the law requires a signature.

All these measures will minimize physical person-to-person interactions and facilitate remote work at home. Basically, for notarizations, a live video will be required where the signatory will show their valid state issued photo ID to the notary during the video conference in front of witnesses, if necessary, as they sign the document. There are many other procedural requirements in the Order to create a valid notarization and, therefore, notaries should review those approaches carefully. The most important method being that although the notary and the person signing are not physically present together, that they can still communicate simultaneously and effectively. Through the aid of real-time sight and sound, via two-way audiovisual technology, all things are possible.

John D. Gwyn focuses his practice on the representation of community associations, management companies and developers with a particular emphasis on real estate and commercial litigation. He has handled many types of community association related matters including assessment collections, lien foreclosures, bylaw violations, civil rights defense and creditor bankruptcy matters. Mr. Gwyn has gained experience in community association law over the years through his representation of condominium and homeowners associations, as well as individual homeowners, in matters involving real estate, contract, and construction defect litigation issues. His extensive litigation and transactional background provides him with the experience necessary to handle even the most complex legal issues that neighborhood associations may encounter. He may be reached at (734) 261-2400 or jgwyn@cmda-law.com.