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Execution of Seller Documents for Sellers Who Will NOT be Present at Closing (“Mail-away closings”)
If the seller cannot physically attend the closing, arrangements must be made for seller documents to be executed before closing and delivered by the day of closing to the closing agent. This is often referred to as a “Mail-Away Closing”.
The closing agent should always have a chance to review seller documents before execution. Therefore, if sellers will not be present for closing, it is imperative that sellers, seller’s attorneys, and closing agents are coordinated as early as possible in the transaction to avoid delays.
Execution of Seller Documents for Sellers Who Are Not in the United States
Many sellers who own property in Florida live abroad. Traveling to the closing is expensive and sometimes logistically impossible. Florida law allows for the execution of seller documents abroad if and only if they comply with Florida laws.
For sellers who live abroad, it is recommended that if they are going to acquire property in Florida, they talk to a real estate attorney that can provide recommendations as to different ways to structure their purchase such that it will be as smooth as possible to sell at a later date. In some instances, this may include the formation of legal entities with managers or agents that live in the U.S. In other cases, it may include powers of attorney (POAs).
These questions must be managed on a case-by-case basis and are always subject to the approval of closing agents and/or to contractual terms and conditions agreed upon by buyers and sellers. It is always recommended that the title insurance underwriter acknowledge and approve Seller Documents executed abroad for any additional requirements.
There are three main avenues for sellers to execute seller documents abroad: signing in front of a civil law notary in the foreign country or signing at a US Embassy or Consulate. Remote Online Notarization is a recent development in Florida and we will explore its requirements and limitations below
Execution of Seller Documents Using Civil Law Notaries
Signing in front of a civil law notary of a foreign country is usually relatively simple because notarization services are readily available in most countries. However, foreign countries have their own rules and laws that may not be aligned with the requirements of Florida law.
For example, in some countries, notaries will only notarize in the language of that foreign country, and will not notarize original documents in English. Notaries in those countries usually propose that the documents be translated into the local language and that local language document is the one they notarize. However, the Recording offices in Florida usually require notarization of an original copy of the English language document. The situation is further complicated by countries (or closing agents) that require apostilles for these private documents. According to the U.S. Department of State website, “Apostilles authenticate the seals and signatures of officials on public documents such as birth certificates, court orders, or any other document issued by a public authority so that they can be recognized in foreign countries….” Apostilles are not a requirement of Florida law, nor are they a substitute for properly notarized and witnessed documents.
Therefore, seeking out a local notary, understanding their requirements, and having them understand the requirements for conveyance documents in Florida is something that sellers should investigate as early as possible. Moreover, if the seller knows they will be executing a document with a civil law notary in a foreign country, it may be advisable that additional terms disclosing such conditions be included in the Purchase and Sale Contract, not only for the acceptance of the buyer but also for the disclosure to and approval of the Closing Agent.
Execution of Documents at a US Embassy or Consulate
Signing and notarizing English language documents is not a problem at US Embassies and Consulates. When seeking this option, however, there are several things to keep in mind:
- You must seek an appointment (usually online) at the embassy or consulate as soon as possible. While some embassies provide appointments within three days, some take three weeks or more to give an appointment;
- You must understand the embassies’ rules pertaining to the notarization of documents at the embassy or consulate. These rules vary from country to country. For example, in one country, there may be a limit as to how many notarizations can be performed in one appointment. In another country, they may not allow witnesses to accompany the person signing the documents. In yet another country, they may charge per notarization or per page of the document. Understanding these requirements as early as possible in the process will avoid delays and headaches.
Execution of Seller Documents using Remote Online Notarization
Remote Online Notarization (RON) is a new development in Florida, implemented as of January 1, 2020. Though RON had been implemented in many other states for several years, documents that had been notarized online remotely could not be recorded in Florida until the law was passed.
The Florida law is an exciting development and opportunity for the state; however, it does have some requirements that may limit its usefulness for foreign sellers who are abroad. This is due to the fact that Florida law requires the “authentication of identity” of those signing. In Florida, a process known as “Knowledge-Based Authentication (KBA)” has been implemented on all Florida RON platforms.
Some states, like Virginia, do allow for RON of non-US persons. However, any use of RON with notaries that are NOT from Florida still requires that the execution of the documents comply with Florida law. The most important of these compliance requirements include the authentication of the identity of the personas who are going to sign the documents. This authentication is required for RON-executed documents performed by notaries outside of Florida because other states do not use the KBA standards used in Florida to authenticate the sellers identity. Therefore, additional authentication measures must be taken. It is imperative that in circumstances where seller document execution will occur via remote online notaries that are from states different from Florida, that the Title Insurance Underwriter and Closing Agent have approved the use of RON as well as the identity authentication process to be followed. While the use of this methodology expanded during the Covid-19 lockdowns around the world, underwriters still required case-by-case approval.
Guidelines for Execution of Documents for “Mail-Away” Closings
Whether documents are executed in the US or in a foreign country, the following requirements must be met:
- Signature in blue ink
- Print documents on one side (not double-sided) on 8.5” x 11” paper. Please do not print on both sides of the paper as the recording clerk may reject the recording of the instruments.
- Margins provided on the documents are deliberate so that the notaries have sufficient space to notarize and so county recorders have sufficient space to attach official recording information. Please print the documents in the format provided.
- Once printed, please take the set of documents to be signed before a licensed notary public, and where indicated, two (2) disinterested witnesses. Both witnesses must legibly sign and print his/her name underneath his/her signature line. The notary public can serve as one of the witnesses.
- Please ask the notary public to complete the notary section, sign where indicated, and to affix his/her notary seal and commission expiration date. Please be sure the notary’s seal is legible as this will create a rejection from the recording clerk. Once the documents have been fully executed, please scan and email them to our office for review before sending all signed originals to our office by courier.
- Once our office approves the documents, please send all signed originals to our office as soon as possible by courier. Please ensure that the courier services include and provide a tracking number for the documents. We recommend, where possible, major courier carriers such as FedEx, UPS, or DHL.
Seller documents sometimes have signature pages that are on a separate page from the contents of a page. This is normal. Individual pages do NOT require initials or signatures on each page, with the exception of certain POAs and certain corporate documents that do require signatures on each page. The notarial section of documents that need notarizing is dictated by Florida statutes. Notaries should NOT change the language of the acknowledgment nor any part of the notarial section. The purpose of an acknowledgment is for a signer, whose identity has been verified, to declare to a Notary public or civil-law notary that he or she has willingly signed a document. The acknowledgment in most Florida documents will be similar to the one below:
The foregoing instrument was acknowledged before me by means of [X ] physical presence or [ ] online notarization, this [DAY] of [MONTH], [YEAR] by [NAME OF THE PERSON SIGNING], who [ ] is personally known to me or [X ] has produced [NAME OF THE IDENTIFICATION PRESENTED] as identification.
The notary public must select that the signer is acknowledging the signature in the notary’s physical presence and that the signer is presenting valid photo identification, such as a passport or driver’s license. The notary public will also fill in the date of the signature.
Below is a sample of a seller page with indications for seller’s signature, witness signatures, and notary section.
As a general guideline, below is a summary of what is required for the proper execution of the most common type of closing and conveyance documentation. Every transaction is different and closing agents, lenders, and/or underwriters may require different and/or additional requirements:
- Warranty Deed – requires original signature of the seller or representative of the seller, in the case of a legal entity; two witnesses; and notarization.
- Bill of Sale – requires sellers’ or seller’s representative (in the case of a legal entity) original signature and notarization, but usually does not require witnesses.
- Affidavits (Closing Affidavit, Title Affidavits, and other affidavits) and Assignments (Common Elements & Leases, when applicable) – requires sellers’ or seller’s representative (in the case of a legal entity) original signature and notarization, but usually do not require witnesses.
- Non-Foreign Certification (also known as FIRPTA Affidavit) – requires sellers’ or seller’s representative (in the case of a legal entity) original signature and notarization, but usually does not require witnesses.
- Disbursement Instructions – requires sellers’ or seller’s representative (in the case of a legal entity) original signature and notarization, but usually does not require witnesses
- Settlement Statements – requires sellers’ or seller’s representative (in the case of a legal entity) original signature but does not require witnesses nor notarization. In some instances, such as in cash transactions, closing agents may accept electronic signatures via platforms such as Hello Sign, DocuSign, or others.
Click here to read the complete Guide to Seller Documentation