By: Cara Dudek-Petri Gibbons
I’ve tried very hard to educate my staff that there are a lot of aspects of a real estate transaction that we cannot control, but communication is not one of them. Even if I’m telling you that there is nothing new to report, I’m at least telling you that. There is nothing more frustrating in any part of life than being ignored or what the kids are calling “ghosted.” So, when we are in the middle of a transaction and we finally find out that the seller is not, and has not, been in the United States, being told that at any point other than the very beginning is not only frustrating but can be detrimental to closing on time. Remember, we don’t know where the seller is when we get a contract. You must communicate that information to us.
We’ve written a few blog posts now about foreign sellers and tax withholding, and the [not yet active] remote online notarization statute. But this blog post is solely about sellers who are out of the country and need to execute their conveyance documents for closing.
When selling real property, you must at the very least sign a deed. In order for the deed to be a valid conveyance, it must be notarized and the original document presented to the attorney for recording. We cannot legally record a copy of a document, nor can we accept a notary acknowledgment that is not in English. If you are a seller who is not in the United States, the only real option to have your documents for closing notarized are going to the US Embassy or Consulate. You cannot just walk into either one of those places, you have to make an appointment and, in some countries, getting an appointment may take several weeks. The Embassy or Consulate may be located hours from where the seller is living or staying. And lastly after execution, the seller will have to get the original signed and notarized documents back to us for closing. A typical standard FedEx/UPS overnight delivery isn’t an option from most countries overseas, so you must also factor that into timing to meet the closing date.
Now knowing the above, here are the most frequent follow up questions we get from the sellers and their agent when inevitably they are frustrated with the burden this has now caused and the likely delay in closing if this was not addressed at the beginning of the transaction.
Why can’t we just have the documents electronically notarized or e-signed? First, you can’t e-sign a deed. Second, the remote online notarization statute is not active yet. And even when active, an electronic notary who was commissioned in any state in the United States cannot electronically notarize a document for someone who is physically present in another country.
Why can’t my seller just sign a POA? POA’s must also be notarized to be valid. If the seller can sign and notarize a POA, they can sign and notarize a deed. Had they been proactive and had a POA in place before leaving the United States, that would have avoided any issues that now have arisen.
My seller found the equivalent to a notary in Portugal that will electronically notarize the documents, does that work? No, it does not. First, it will not be in English. Second, equivalence is relative. It’s likely not the same as what we consider notarization. And if it is done electronically, it will not be valid for recording, thus not a valid conveyance.
You’re the only attorney in town that requires this. Why are you being so difficult? I’m sorry you feel that way. We’re certainly not the only attorney in town that requires this. It is the law. If an attorney is accepting something else, they’re breaking the law and likely the conveyance is not going to be valid.
The best thing to do if you are a seller who must leave the country prior to selling your home, or you’re an agent who is working with a seller who is out of the country, is to call your trusted real estate attorney prior to listing the home to get advice. Proactive communication is ideal. There are a number of things we can work through to assure that when you do get under contract, closing will not be delayed due to the sellers not being physically present in the United States. And with this information, you can now rest easy.
