Over the past two weeks, two new laws impacting homebuyers, homeowners and real estate professionals were recently signed into law by Governor Baker.
The first new law which both GBREB and MAR strongly supported, allows for remote online notarization. GBREB first began working with our colleagues in the real estate industry to try and find a solution to this issue in March,
Under the new law, notaries public in Massachusetts will be permitted to perform "an acknowledgement, affirmation or other notarial act" through real-time video conference rather than an in-person transaction for the duration of the COVID-19 crisis. The legislation outlines a specific process through which remote notarizations must occur, as follows:
• All parties and the notary must be located in Massachusetts;
• All principal parties must provide proof of identity either during the video conference or by sending a copy of identification materials to the notary;
• The notary must observe execution of the document by all parties through real time electronic video conferencing;
• All executed documents must be sent to the notary for their stamp and signature following the video conference. Mortgage closings require a second video conference to confirm that the documents received by the notary are the same ones that were executed.
The law’s provisions, which are aimed at allowing for key business transactions to continue without violating social-distancing practices, would last until three days after Gov. Charlie Baker repeals his state of emergency declaration. For additional guidance and to learn more about the new law, read our member advisory.
The second new law enacted is an eviction and foreclosure moratorium bill. For several weeks, GBREB worked tirelessly to push for a fair and balanced bill for property owners. GBREB was successful in clarifying the definition of small business. However, lawmakers were reluctant to consider further modifications, including a prohibition on the so-called notice to quit efforts, and a call to limit the scope of the legislation to residential evictions, as commercial evictions should be conducted separately. Key provisions of the new law include:
1) Prohibits landlords of residential dwelling units, for non-essential eviction actions, from terminating tenancies or sending notices to quit;
2) Prohibits landlords from imposing a late fee for non-payment of rent or furnishing data to a consumer reporting agency if, within 30 days, the tenant provides notice and documentation to the landlord that the non-payment was due to a financial impact form COVID-19;
3) Allows landlords to utilize last month’s rent to pay for expenses if the landlord notifies the tenant in writing. However, landlords still must provide tenants with the same interest that would have accrued if the landlord had not utilized last month’s rent and prohibits landlords from deducting money from the last month’s rent for any non-payment of rent.
Notably, however, there also are a couple of important protections for property owners. These include:
▪ A moratorium on foreclosures for the sooner of 120 days from enactment or 45 days after the end of the state of emergency, and
▪ 180 days of mortgage forbearance for homeowners experiencing a financial impact from COVID-19.
The law’s provisions will remain in effect for 120 days or 45 days after the emergency declaration has been lifted, whichever is sooner. The Governor may postpone the expiration for a period of time, which cannot go past 45 days after the emergency declaration is lifted. To learn more about the law’s restrictions and its implications, read our legal advisory for members.
The Massachusetts Executive Office of Housing & Economic Development has issued corresponding regulations forms and guidance which include the following:
• Sample forms for documentation of a financial hardship leading to non-payment of rent (residential form, small business form)
• Sample forms for providing notice to tenants of the use of advance rent payments
• Guidance for tenants on the eviction moratorium
• A “language access document,” encouraging tenants in several languages to have the forms translated.
In addition, the Massachusetts Division of Banks has released guidance on the new law’s foreclosure moratorium and forbearance provisions.