COVID-19 Introduces Offshore Notarization Issues
“As seen in the Real Estate Reality Column in the San Leandro Times & Castro Valley Forum, written by Carl Medford”
We frequently deal with sellers located in other countries. Since most documents can be signed electronically, the only issue is signing the final closing documents. Since they need to be recorded, they must be notarized by a notary accepted by the State of California.
In the past, regardless of where sellers were located, the process was the same. While some states allow offshore notaries to process documents, California has stricter regulations and requires all documents notarized offshore to be by notaries officially recognized by the United States Government. In practice, this has meant that all documents can only be signed at US Embassies around the world.
In most cases, it simply meant a trip to the closest US Embassy. Since the US has over 300 embassies around the world, one was usually not far away. While travel to a US Embassy might be inconvenient, it was usually better than returning to the US to sign documents. If it was not possible to access a US Embassy, the sellers would board a plane, fly to the closest US city, meet a notary at the airport, sign the documents and then board a plane and fly home.
This was, of course, pre COVID-19. Currently, due to the pandemic, most US Embassies around the world are closed, forcing those in other countries who need notarized documents to find other solutions.
Consequently, the State of California allows offshore notaries to process documents so long as they are accompanied by an apostille. The Merriam-Webster dictionary defines an apostille as: “a document used in international law that is issued by a government in accordance with the Hague Convention and that certifies that another document has been signed by a notary public.”
Obtaining an apostille introduces significant delays. As an example, a seller who recently located to Ireland had documents notarized by an Irish notary who then mailed the documents to the Irish Department of Foreign Affairs and Trade where the apostille would be applied. Shelter-in-place rules forbid a more timely in-person delivery. After more than a week, the documents were returned and then overnighted to the US. In reality, the process took more than 3 weeks.
Our recommendation is simple: if offshore notarization will be necessary, obtain a Power of Attorney for each signer so someone can sign in their stead here in the US. If done ahead of time, there will be no significant delays.
Carl Medford is a licensed Realtor with Keller Williams Realty and a licensed general contractor. This article is sponsored by the Central County Marketing Association.