April 6, 2020
Updated: April 8, 2020
The Coronavirus Disease 2019 (COVID-19) pandemic and the resulting elective and government-mandated shelter-in-place orders have complicated the path to closing of even routine real estate transactions. In order to ensure timely closings and perhaps avoid a technical breach of contract, parties to real estate transactions should consider the following:
Execution of Closing Documents
Determine in advance whether the authorized signatory is available and where “wet” signatures are required, the signatory’s physical location. Be aware that escrow companies, if open at all, generally are conducting signings and closings by advance appointment only. If possible, as a back-up provide for multiple authorized signatories in the company’s closing resolution.
Confirm that the signatory has access to a notary. If an in-person notary is not feasible, consider whether remote online notarization (“RON”) via video-conferencing is available. About one-half of all states adopted RON prior to the COVID-19 pandemic (note that Arizona’s RON statute, A.R.S. 41-371 et seq., goes into effect July 1, 2020*), and several states have recently adopted temporary emergency RON orders. In addition, federal legislation is pending to authorize RON nationwide. Confirm with your title company whether it will accept RON.
Many people who are working remotely for the first time do not have access to printers and scanners. Consider accepting electronic signatures, if permitted by the parties and the title company.
Delivery of Documents and Closing Funds
Many title and escrow companies’ offices are closed, with escrow officers working remotely, so it is important to confirm the location to which to deliver the original executed closing documents. . Because of extraordinary demands on overnight and other delivery services, it is prudent to allow several additional days for delivery of documents. Wires of closing funds may also be delayed and arrangements should be made well in advance.
Recording Office Closures
Confirm that the pertinent governmental recording office is open, is accepting recordings and is not anticipating any unusual delays. Although electronic recording is widely offered, there are still jurisdictions that accept only in-person recordings, and there are a number of jurisdictions in which both electronic and public offices are experiencing delays or closure.
Title Policy Gap
Delays in recording or in the recording office processing recorded documents after acceptance can create a longer than usual (and possibly indefinite) gap period. Confirm with the title company that the title insurance policy will be issued without an exception for the gap period (or the form of indemnity that will be required to remove the exception).
*April 8, 2020 Update: Arizona Governor Ducey today issued Executive Order 20-26, accelerating the establishment of RON, to be effective April 10, 2020. The Arizona Secretary of State will begin accepting notary applications for RON on April 10, 2020. The application requirements and links to the administrative rules (A.A.C. R2-12-1301 et seq.) may be found at https://azsos.gov/business/notary-public.
About the Author: Kurt Peterson assists clients in the areas of real estate, commercial finance and general business law. Drawing on over 30 years of experience, Kurt’s commercial transactional practice includes real estate acquisitions, financing, leasing, operation and disposition as well as a diverse general business practice representing business owners on corporate formation, risk management, acquisitions, contracts and operational matters. [email protected] | 602.222.4951
Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.