Foreign Seller(s) and Foreign Signings: They both require rigourous attention to detailed rules

While the phenomenon is not quite as pervasive as in the past, there are still many owners of United States real estate who are either foreign nationals, with US Social Security Numbers, or foreign nationals who have no US Social Security Number. Purchasing property in the United States does not require any type of notification or withholding. Selling property for a purchase price in excess of $300,000 can present issues, not only for the Seller (who will be subject to a ten percent of proceeds withholding deposit) but also for the US Closing Agent, who is representing either the Buyer or a Lender. Suffice it to say, if you are involved in any situations such as the one described above, it is essential that you get advice from an accountant or other trusted financial advisor before you purchase from a person or entity without a US Social Security Number.

There is also an element of complication when people who own US property reside abroad, whether they are foreign, or US, citizens. Registries of Deeds in Massachusetts (and probably in other jurisdictions as well) have rules about recording documents executed outside the United States, which can often delay or “kill” transactions.

The basic rule for recording documents at the Registry is that the document must be signed and acknowledged before a Notary Public, or other official who can take oaths. This is relatively simple when the signing takes place anywhere in the United States. Massachusetts Registries regularly require a Notary from another state to place his or her Notary Seal or Stamp on a document which he or she has acknowledged. That is the only thing which is required for domestic signings. The full faith and credit provision of the US Constitution provides a relatively easy to follow procedure for these type of signings.

If, however, the signing occurs outside of the United States, there is a much more difficult standard. That standard requires the signer of the document to make an appointment at the closest United States Diplomatic Embassy, and sign the documents before an Embassy representative. There is a rather substantial fee charged for this service, and in some foreign cities (Paris, London and Dublin) there is a “waiting list” for appointments. It usually makes sense to “plan ahead” if an Embassy signing is involved, and to get the documents signed as soon as possible after the transaction is finalized by the execution of the purchase and sale agreement.

My readers should be aware of a procedure which is less expensive and more time-friendly. In almost every foreign country, there are a group of professionals (usually attorneys) who have been granted “Letters Apostille” with regard to witnessing documents. If a person signing a document outside of the United States which requires proper attestation, a document acknowledge by an Apostille will be accepted for recording. This is especially helpful for people who need to sign documents which need to be recorded and are not near a United State Embassy.