April 2020

THE BARNES WALKER EDUCATIONAL SERIES
proudly presents:

Conducting Safe Closings & Conferences
Thinking Outside the Box!

As you know, these times are unprecedented, crazy, and continually changing the way we and all other businesses conduct meetings, conferences, and closings, and the real estate industry and the practice of law are no exceptions.

This article is intended to share with you Barnes Walker's various methods to address the latest safety protocols and procedures amidst the current Coronavirus pandemic to ensure the safety of employees, clients, sellers, buyers, Realtors^®, guests, and employees and still carry on the important business that we and others do. We hope you, the reader, can adopt some of these safety protocols and procedures in your personal and business lives. Many of the businesses of Realtors^® and our business clients, along with our law firm and title company are defined as "essential businesses" that must remain functional and serve their clients to ensure their needs are met.

Your business likely also has some form of business interruption coverage. "Business interruption insurance is generally intended to cover losses from direct interruptions to a company's operations, such as a fire, natural disaster or other event. Coverage may include lost revenues, rent, or utilities, among other things."⁷ Business interruption coverage can be triggered by either direct physical loss or damage or by indirect losses.⁸ Business interruption coverage for indirect losses comes in several forms: Civil Authority coverage, Ingress/Egress coverage, Contingent Business Interruption (coverage), Supply Chain coverage, Stock Throughout policy coverage, and Trade Disruption insurance coverage.⁹ The most relevant type of coverage is Civil Authority, which may apply if the government (at any level) issues a shelter-in-place or quarantine order that prevents you, your employees, and/or your customers from accessing your business property.¹⁰

Conferences, meetings, and closings can be made available, both in-office and out-of-office, telephonically and online. Here, at Barnes Walker, we are trying to accommodate all methods of conducting closings, meetings, and conferences in order to keep them and our client and closing work flowing, and we are trying to take advantage, as you can, of all of these different methods to satisfy the need of all parties.

Florida adopted a new remote online notarization law earlier this year which is sure to change the way you and we handle real estate closings and other document signings. However, being that it is so new, we and others are still trying to meander through the different complexities and obtain the consent of mortgage lenders. There are also other non-notary online signature methodologies such as DocuSign^®, which can be taken advantage of. With all of these tools, it is possible to go from contract to closing without a seller, buyer, or client ever having to leave the comfort of his or her home, which is vital, as many individuals have been ordered to stay at home during this pandemic.

The following are the different methodologies that Barnes Walker uses and that buyers, sellers, Realtors^®, or other parties can avail themselves of in order to conduct meetings and/or closings safely and conveniently:

1. In-office Conferences and Closings

Since Barnes Walker has five locations around Manatee and Sarasota, we had to develop the following formal safety procedures to protect clients, sellers, buyers, Realtors^®, etc., which you may wish to consider. In each office we have multiple closing rooms and numerous procedures in order to protect and make sure the various parties and we have minimal contact between each other. We explain our procedures and their benefits to the parties before they come in the office, and we try to schedule each party at different times and meet with each party in separate offices, as well as tailoring meetings to a party's wishes. While in the room, we try to minimize the number of people that are present at the conference or closing, and we sit as far away from each other around the table as possible. Our notaries and/or witnesses are brought in for the appropriate documents, again maintaining their distance, and when done signing, we remove ourselves from the room, and the notaries, witnesses, and closing officers then sign and process the documents in the back office. All surfaces and tables are sanitized after every meeting and/or closing, and clients keep the pens that they used during the signing. We do not reuse anything in the office. We also have sanitizer on the table for use and, of course, restrooms for hand-washing. In addition, we encourage people to call and e-mail rather than meet in person during this time.

2. Out-of-Office Conferences and Closings

We have been able to conduct meetings and/or closings at people's homes and/or businesses. However, this is becoming very risky and, if we do handle meetings and/or closings at someone's home, for everyone's safety, we do not enter the person's home. We do, however, bring witnesses and/or notaries to people's homes, where we execute documents at the front door to make closings and other signings work. We have also assisted the execution of documents in our parking lot while clients remain in their vehicle. These methods are not preferable, but to accommodate closings, signings, and meetings in these times, they are necessary.

3. Remote Online Notarization

Florida's new Remote Online Notarization ("RON") law (just passed this year) allows one to sign all of the documents that require notarization and witnesses without having to physically appear before a notary public. In order to use RON, the parties will need to have access to the appropriate equipment, which generally includes a computer with good internet access, appropriate software, a web-cam, and a microphone. RON also does not require that the witnesses be physically present. However, as a downside, if the buyer is obtaining a mortgage, the buyer will need to ensure that their lender will accept documents that have been electronically notarized, and, as of yet, not many lenders have accepted this as an option. Please note that most tablets or cell phones will not work for this application. The procedures for RON are as follows:

The signors will be patched into a two-way video call with the RON certified notary, which will allow the signors to e-sign the documents on their computers, and the notary must identify the principals and witnesses with a two-step process, the first being the uploading of a government issued identification, such as a driver's license, to analyze whether it is a valid identification or not. The second step of the identification is a series of five personal questions that are gleaned from public and proprietary data sources, such as credit bureaus, and the signors must answer 4 of the 5 correctly in a short period of time (2 minutes). (The problem here is that, if the signors do not answer 4 of the 5 questions correctly, the process stops, the documents cannot be electronically notarized, paper documents then have to be delivered to the signors, and the signors must appear in person before a notary public.) Once the RON signors are adequately identified (they must be US citizens and be in the US), there is a consent as to the procedures, a general description of the documents to be signed, and an opportunity to discuss them, as is typical in a normal closing and/or meeting. The signors then electronically execute the documents remotely. If the witnesses are not with the signors, the identity of the witnesses must be verified in the same manner as the signing party. Once all of the documents are signed and witnessed, and/or notarized, then the process is complete, and a video recording of the RON is maintained by the notary. Again, this is a new process, and there are still a lot of kinks to be worked out.

4. Zoom or Skype

We have conducted, and you can conduct, numerous conferences and meetings through Skype, Zoom, or similar procedures, as well as telephone and conference calls. During these times with social distancing, this process is being used more and more, and systems are becoming better and better.

5. DocuSign^®

DocuSign^® or similar execution methods for documents that do not require witnesses or notarization are available to sign contracts, letters, etc. One must verify the identity of the signor to ensure the proper person is signing. These methods are not applicable if documents require notarization or witnessing.

6. Mail-Away Closings

A large number of closings and other document signings can be "mail-aways" in which one either scans and emails or overnights the documents to the parties, and then the parties can either go to a notary public (and witnesses, if required), or have a notary come to them to sign the appropriate closing documents and/or papers. The notary must be commissioned in the state in which they are performing the notarization, and the parties are still required to appear before the notary with two witnesses for certain documents like deeds and mortgages (however, the notary can also act as a witness unless the document is a Will or trust). There are many mobile notary services which will notarize documents at a location of a party's choosing and which can be arranged. Mail-away closings are a very effective alternative for closings where the mortgage lender will not accept electronically notarized documents or where the parties do not have access to the required technology.

As you have read, whether a person is at home, cannot afford to attend a closing or conference, or simply does not want to take the risk for medical reasons, there are many alternatives that do not require physical presence. Barnes Walker's and your internal and external safety procedures and protocols must be continually improved, and we must all strive to provide the safest and most convenient environment possible for clients, sellers, buyers, Realtors^®, guests, and employees.

If you have any questions about conducting safe closings and conferences, please do not hesitate to call us at (941) 741-8224 or e-mail us (just use the first letter of an attorney's first name followed by his or her last name at BarnesWalker.com). As always, we will answer your questions (within reason) at no charge.

With warm regards,

Important Note: The information contained in the preceding Barnes Walker Educational Series article is summary in nature, does not cover all aspects of the law as it pertains to safely conducting closings and conferences, and is sent for educational purposes only for the benefit of clients, sellers, buyers, and members of the Realtor^® Association of Sarasota and Manatee, Inc., of which we are a proud affiliate member. This article should not be considered as legal advice for anyone's situation nor is it intended as specific or detailed advice, as we do not have any information specific to anyone's circumstances. Further, the preceding article is not intended to be an all-inclusive discussion of safely conducting closings and conferences, but a guide to the same, and there may be other matters not described in the article that may impact someone's particular situation. Therefore, always seek legal advice regarding your unique circumstances. Finally, this article is intended as a public service and is not a solicitation seeking legal employment of our firm by anyone.