Are Closings Happening?
By Wendy W. Kraby, Senior Associate, GDCR Attorneys at Law.
With social distancing and work-from-home realities, are business and real estate closings even happening during the Covid 19 concerns?
As of the date of this writing, both business and real estate closings in Georgia are able to be processed during this time. However, parties need to be patient, flexible and proactive. The overall situation is very fluid and requirements and restrictions are rapidly changing.
Banks, accountants, law firms and other professional offices are — by and large — up and running. However, some services may be temporarily delayed as offices balance their work staff. Many employees are working from home, using their personal cell or home phones, so note that your caller ID may not be picking up the true caller.
Last week, my phone noted that I was getting calls from a “Rodney” in New York. I assumed it was a sales call or wrong number. Turns out it was a bank officer with Chase Bank calling to discuss resolving a client’s legal issue. I had eagerly been awaiting a call from the bank.
“I’m so sorry to call from my personal home,” Rodney said as his dog barked in the background, “but our entire staff is working remotely right now.”
We resolved the issue and I was told that I would be sent a follow up letter confirming our agreement. However, Rodney said the letter would take about two weeks or more to come, because he was unsure who was in the office to physically mail it.
We both lamented that this is our reality. But ultimately, the issue was resolved, and the client was pleased.
Note that other than closings in which documents need to be signed, law firms and other professionals have quickly moved to almost all meetings being by phone conference or video conferencing.
When closing a real estate deal, the requirement is to record in the public records any property transfer deeds or financing liens as soon as possible after closing. However, with many Georgia courthouses closed to outsiders or closed completely for cleaning (such as DeKalb County), how are original documents to be submitted for recording? Most counties in Georgia are now able to accept online filing of deeds and most law firms and title companies have transitioned easily to this. For, counties that do not have online filing or who are not able to accept mailed deeds for recording, major title companies have stated that they will insure over the “recording gap” (the time between when a deed was signed and when it is recorded in the public records) with signed indemnities from the parties involved.
While some closing documents, such as closing statements, can be signed remotely, real estate deeds and security deeds in Georgia normally must be signed, witnessed and notarized in person. That is, the signer, witness and notary should all be in the same room and actually see the signing take place. On March 31, the Georgia governor issued an order to allow video notary signing under certain conditions.
At our firm, we schedule closings to make sure there is only one closing at a time in the office, which closings take place in a designated open-air area that is sanitized before and after each closing. We have the signer, witness and notary (and attorney) each sit at the same table, but separated to different corners of the large table, each with their own blue pen. Proper social distancing is maintained, and we have set up so that only one “touch point” to allow people into the building is needed.
There is no legal requirement that Seller and Buyer sign at the same time or even sign in the same room.
For a recent closing in which we represented the Seller, she signed in our office the day before closing and we sent her documents via overnight delivery to the closing attorney, who had the Buyers come into the closing office the next day. The closing proceeded with no issues and the bank wires were delivered quickly.
According to Georgia law (O.C.G.A. § 10-12-7), parties to a contract (not a land deed) can sign electronically through an app or program. I do not recommend this unless both parties have a provision in the contract that signing electronically is specifically permitted. Proving in a Georgia court of law that someone has actually signed a document electronically is not well established. For real estate and business closings, there are typically numerous documents to be signed. It is still recommended that closing documents be hand-signed by the parties.
To date, our firm has found lending institutions to be very willing to move forward with previously scheduled closings – both for real estate and business purchases. I recently spoke to the president of a local community bank who said, while it did not let the community inside the bank without an appointment, the bank is very much open and still lending — although some employees are working from home.
Wendy W. Kraby is a business and land development attorney at Gregory, Doyle, Calhoun & Rogers, LLC in Atlanta and is an affiliated professional member of GABB. https://www.gdcrlaw.com/wendy-w-kraby