A Mail-away Closing is one in which one or more of the parties is most often, though not necessarily, out-of-state and asks if the closing documents be emailed to them and then executed in front of a notary or other signing service. Unfortunately, the ethical permissibility of these types of closings is suspect at best and we can’t use mobile notary or similar services for closings. As a recent Chair of the Real Property Section of the State Bar says: “[o]ur Formal Advisory Opinions also do not currently sanction remote closings.”
Georgia is what’s known as an attorney state, and real estate closings are considered the practice of law. Closings must be conducted, and all the documents signed, in a Georgia lawyer’s presence.
In fact, both the Georgia’s State Bar and Supreme Court have consistently said that a Georgia attorney must be physically present at closing:
[A] lawyer cannot delegate to a nonlawyer the responsibility to “close” the real estate transaction without the participation of an attorney. Formal Advisory Opinion No. 86-5 also provides that “Supervision of the work of the paralegal by the attorney must be direct and constant to avoid any charges of aiding the unauthorized practice of law.” The lawyer’s physical presence at a closing will assure that there is supervision of the work of the paralegal which is direct and constant. Supreme Court of Georgia, Formal Advisory Opinion 00-3. (Emphasis added).
The Supreme Court of Georgia additionally wrote:
…[W]e have issued formal advisory opinions which confirmed that a lawyer cannot delegate responsibility for the closing of a real estate transaction to a non-lawyer and required the physical presence of an attorney for the preparation and execution of a deed of conveyance (including, but not limited to, a warranty deed, limited warranty deed, quitclaim deed, security deed, and deed to secure debt). Supreme Court of Georgia, In Re: UPL Advisory Opinion 2003-2. (Emphasis added).
The Ethics Committee of the Real Property Section of the State Bar of Georgia also states that an attorney must
“[a]ttend the closing of the transaction. An attorney must be physically present at the closing of a transaction and may not telephonically supervise a nonlawyer officiating at the closing.” Ethics Committee of the State Bar of Georgia, Residential Real Estate Closing Procedure Handbook. (Emphasis added).
Not only is an Georgia lawyer’s presence required when closing documents are signed, the Georgia Supreme Court approved an advisory opinion by the Georgia State Bar’s Standing Committee on the Unlicensed Practice of Law that found that the preparation and execution of a deed of conveyance by a non-lawyer represented the unauthorized practice of law:
[W]e have consistently held that it is the unauthorized practice of law for someone other than a duly-licensed Georgia attorney to close a real estate transaction or to prepare or facilitate the execution of such deed(s) for the benefit of a seller, borrower, or lender. Supreme Court of Georgia, In Re: UPL Advisory Opinion 2003-2.
This position is shared by the Real Property Section, which maintains that remote notary closings “encourage the unauthorized practice of law.”
Ultimately, at the least, an attorney would not be satisfying his or her ethical obligations by merely sending closing documents to be signed in front of a mobile notary or other similar service. At the worst, an attorney could be seen as aiding the unauthorized practice of law by doing so. There’s unfortunately no way around it: Closing documents simply must be signed in a Georgia lawyer’s presence.
With modern communication technology like Zoom, Microsoft Teams, Google Meet and other video conferencing services, this ethics rule may seem a bit outdated. We sure think so, anyway. And with that in mind, the Real Property Law Section of the State Bar recently asked the Georgia Supreme Court to reconsider their ruling requiring a lawyer’s physical presence when the closing documents are signed. The Supreme Court declined to do so.
So where does that leave someone who isn’t able to come to closing? Unfortunately there are few options. One is to find a licensed Georgia lawyer who is willing to oversee the execution of the closing documents. This is likely to be both difficult and prohibitively expensive. After all, there’s an additional set of attorney’s fees to be paid.
The second option is to appoint an attorney-in-fact who will attend closing and sign all of the closing documents. Using a power of attorney for closing is super easy. And it’s free. We never charge for drafting one.
Or, the simplest solution of all is to make sure everyone can attend closing.
Photo by Daniel Herron on Unsplash