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Contactless Closings

Increasingly, real estate attorneys offer these “safe” services to their buyers and sellers (and Agents), and it sure sounds ideal in this COVID-19 environment. Plus, who doesn’t want to close in their pajama pants, right?

On May 1st, the South Carolina Supreme Court issued an Order that said, “Therefore, in order to protect the health and safety of our State’s citizens, it is ordered, that to the extent the Rules of Professional Conduct may require an attorney to be physically present at the closing of a real estate transaction and in close proximity to the parties to the transaction, in light of the current crisis and need for social distancing, an attorney may participate in and supervise the closing of a real estate transaction by way of a video conference”(emphasis added).

“HUZZAHS” resonated throughout the South Carolina Bar. . .

Except, South Carolina attorneys are already allowed to do “distance” closings: we call them ‘mail-away closings’ or ‘phone closings.’ What this Order did not make clear is the requirement that the Notary Public still be present with the signor (i.e. in the same room watching the Borrower put pen to paper). You see, the rules governing notaries are not dictated by Court Administration or even the South Carolina Governor; the Legislature makes those rules. The South Carolina legislature has not jumped on the virtual notarization bandwagon, unlike some of our neighboring states (looking at you, Georgia).

So, Agents: beware heeding the siren call of virtual closings and don’t set your client up for potential legality issues down the road.

At Nelson and Galbreath, we create a safe environment by requiring (and providing) masks by all parties. We encourage social distancing through our scheduling, and we disinfect and sanitize after each meeting. We still want our clients and referral partners to have the WOW experience, but we want to ensure the closing process is both safe and legal.

By Stephanie Weissenstein

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