As you are no doubt aware, the Michigan Supreme Court recently issued a holding that Governor Whitmer lacked authority under either the Emergency Management Act of 1976 (EMA) or the Emergency Powers Act of 1945 (the EPGA), to issue Executive Orders after April 30, 2020. The result of that holding was that the provisions of her e-signature program and the provisions of Executive Orders 2020-74, 2020-131 and 2020-158, and 2020-173, and 2020-187, which re-established and reaffirmed the guidelines for the encouragement of the use of two-way, real-time, audiovisual technology (referred to as AVN or RIN) during the COVID - 19 pandemic, were without authority.
In response to this situation, the Governor of Michigan, on November 5, 2020, signed into law a series of four Public Acts: Public Act 246 of 2020, Public Act 247 of 2020, Public Act 248 of 2020 and Public Act 249 of 2020 (attached), which laws’ intent is to codify certain provisions of the Executive Orders for the use of two-way, real-time, audiovisual notarization technologies. I would direct your attention specifically to the following:
Public Act 249 of 2020 provides two matters of note: Section 9 (4) provides that a notary public’s commission under subsection (2) that expired after March 1, 2020 and before December 31, 2020 is valid through December 31, 2020. Secondly, it creates Section 26c which authorizes a notary public to use “[two]-way, real-time, audiovisual technology to perform notarial acts electronically” if the provisions of the section are met. Please review Section 26c in its entirety but please note that those requirements include the directive that the audiovisual technology must be capable of creating an audiovisual recording of the complete notarial act and the recording must be made and retained for 10 years pursuant to Sections 26b (7) - (9).
Public Act 248 of 2020 adds section 5a (MCL. 565.845a) which contemplates that if a Register of Deeds doesn’t have the equipment to accept an electronic instrument, it shall accept for recording a tangible copy of an electric document properly notarized under Michigan laws on notarial acts. This is referred to as the “paper-out” solution which allows the recording of a copy of a document notarized on an AVN/RIN or RON platform in such counties.
Finally, Public Act 246 of 2020 authorizes the use of two-way, audiovisual technology for the execution of various documents under the Estates and Protected Individuals Code (EPIC or “the Probate Code") and Public Act 247 of 2020 amends the Uniform Electronic Transactions Act (UETA) suspending strict compliance with section 18 allowing state departments to send and accept electronic records and signature consistent with provisions of the Governor’s Executive Orders.
It is most important to note that all these Acts have a sunset date of December 31, 2020.
As a result of the above, the provisions of Stewart Bulletin MI2020001 authoring the use of AVN/RIN closings up to $1,000,000.00 are still in effect, and RON closings, performed in conformity with the statutes are still authorized up to $5,000,000.00. You must still confirm with the County Register of Deeds office, prior to closing, that they will accept the documents and notarization for recording. Please review Stewart Bulletins MI2019004 and MI2019006 linked below, in conjunction with same.
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