Notary

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A notary at work (painting by German artist Max Volkhart). Max Volkhart Beim Notar.jpg
A notary at work (painting by German artist Max Volkhart).
Entrance to notary's office in Vigo, Spain. Notariavigo.jpg
Entrance to notary's office in Vigo, Spain.
"Der Notar" ("The Notary"), Copper engraving from 1698 book by Christoph Weigel the Elder Fotothek df tg 0008473 Standebuch ^ Amt ^ Notar ^ Jurist.jpg
"Der Notar" ("The Notary"), Copper engraving from 1698 book by Christoph Weigel the Elder

A notary is a person authorised to perform acts in legal affairs, in particular witnessing signatures on documents. The form that the notarial profession takes varies with local legal systems. [1]

Contents

The Worshipful Company of Scriveners use an old English term for a notary, and are an association of notaries practising in central London since 1373.

Overview

Documents are notarized to deter fraud and to ensure they are properly executed. An impartial witness (the notary) identifies signers to screen out impostors and to make sure they have entered into agreements knowingly and willingly. Loan documents including deeds, affidavits, contracts, powers of attorney are very common documents needing notarization.

To "notarize" a document or event is not a term of art, and its definition varies from place to place; but it generally means the performance by a notary of a series of possible steps, which may include the following (not an exhaustive list):

  1. Identifying the person appearing before the notary through personal acquaintance or by reference to significant proofs of identity including passport, driving license, etc. [2]
  2. Where land titles are involved or significant rights may accrue by reference to the identity, signatures may also be verified, recorded and compared.
  3. Recording the proof of identity in the notarial register or protocol.
  4. Satisfying the notary that the person appearing is of full age and capacity to do whatever is intended.
  5. Taking an affidavit or declaration and recording that fact.
  6. Taking detailed instructions for a protest of a bill of exchange or a ship's protest and preparing it.
  7. Recording the signature of the person in the register or protocol.
  8. Taking an acknowledgment (in the United States) of execution of a document and preparing a certificate of acknowledgement.
  9. Preparing a notarial certificate (in most other jurisdictions) as to the execution or other step.
  10. Sealing or stamping and signing the document.
  11. Recording all steps in the register or protocol.
  12. Delivering the completed original to the person appearing.
  13. In some cases, retaining a copy of the document in the register or protocol.
  14. Charging the person appearing a fee for the service.


Common law vs. Civil law notaries

Most common law systems have what is called in the United States a notary public, a public official who notarizes legal documents and who can also administer and take oaths and affirmations, among other tasks. [3] Although notaries public are public officials, they are not paid by the government; they may obtain income by charging fees, provide free services in connection with other employment (for example, bank employees), or provide free services for the public good. In the US (except Puerto Rico), any person – lawyer or otherwise – may be commissioned as a notary.

Most civil law-based systems (including Puerto Rico and Quebec) have the civil law notary, a legal professional performing many more functions than a common-law notary public. They are qualified lawyers who provide many of the same services as common-law attorneys/solicitors (negotiation and drafting of contracts, legal advice, settlement of estates, creation of a company and its status, writing of wills and power of attorney, interpretation of the law, mediation, etc...) except any involvement in disputes to be presented before a court.

In the United States, a signing agent, also known as a loan signing agent, is a notary public who specializes in notarizing mortgage and real estate documents.

Notaries in civil law jurisdictions are specialized in all matters relating to real estate, completing title exams in order to confirm the ownership of the property, the existence of any encumbrances such as easements or mortgages and hypothecs.

Often, in the case of lawyer notaries, the certificate to be provided will not require the person appearing to sign. Examples are: certificates authenticating copies (which are mostly not within the permissible functions of U.S. notaries) and certificates as to law, such as certificates as to the capacity of a company to perform certain acts, or explaining probate law in the place.

Online systems

In the United States, the states of Virginia, Texas, and Nevada have all passed laws allowing for online witness by notaries, using screen sharing or webcam as well as identity verification processes. Virginia was the first state to pass legislation allowing online notarization in 2012. Texas and Nevada passed similar laws in 2017 that went into effect in July, 2018. Some sites and apps include Notarize, DocVerify, NotaryCam, Safedocs, and SIGNiX. Notarize is also the first company to offer fully online mortgage closings, executing the first in August 2017 with United Wholesale Mortgage and Stewart Title. In the United States as of 2017 there are estimated to be over 4 million notaries employed. [4]

See also

Related Research Articles

Affidavit written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law

An affidavit is a written sworn statement of fact which is voluntarily made by an affiant or deponent under an oath or affirmation which is administered by a person who is authorized to do so by law. Such a statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public or commissioner of oaths. An affidavit is a type of verified statement or showing, or in other words, it contains a verification, which means that it is made under oath or penalty of perjury, and this serves as evidence for its veracity and is required in court proceedings.

Notary public Civil position that certifies documents and administers oral oaths and affirmations

A notary public of the common law is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to administer oaths and affirmations, take affidavits and statutory declarations, witness and authenticate the execution of certain classes of documents, take acknowledgments of deeds and other conveyances, protest notes and bills of exchange, provide notice of foreign drafts, prepare marine or ship's protests in cases of damage, provide exemplifications and notarial copies, and perform certain other official acts depending on the jurisdiction. Any such act is known as a notarization. The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.

Power of attorney Legal form of delegation

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor. The one authorized to act is the agent, attorney, or in some common law jurisdictions, the attorney-in-fact.

Civil law notary lawyer of noncontentious private civil law

Civil-law notaries, or Latin notaries, are agents of noncontentious private civil law who draft, take, and record instruments for private parties and are vested as public officers with the authentication power of the State. As opposed to most notaries public, their common-law counterparts, civil-law notaries are highly trained, licensed practitioners providing a range of regulated services, and whereas they hold a public office, they nonetheless operate usually—but not always—in private practice and are paid on a fee-for-service basis. They often receive the same education as attorneys at civil law but without qualifications in advocacy, procedural law, or the law of evidence, somewhat comparable to solicitor training in certain common-law countries.

Certified copy

A certified copy is a copy of a primary document that has on it an endorsement or certificate that it is a true copy of the primary document. It does not certify that the primary document is genuine, only that it is a true copy of the primary document.

A sworn declaration is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit but is not witnessed and sealed by an official such as a notary public. Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury.

Legalization (international law)

In international law, legalization is the process of authenticating or certifying a legal document so a foreign country's legal system will recognize it as with full legal effect.

In American law, a signing agent or courtesy signer is an agent whose function is to obtain a formal signature of an appearer to a document. In common parlance, most jurisdictions require the appearer to sign before a notary public. From this, the practice of a notary public designating themselves as a signing agent has arisen. There are notaries public who specialize in the notarization of real estate transfer and loan document signings. Signing agents often have certification and training through private organizations, but is not a requirement in law, although it may be a requirement of the lender in the oversight of real estate transaction document signatures.

An eschatocol, or closing protocol, is the final section of a legal or public document, which may include a formulaic sentence of appreciation; the attestation of those responsible for the document, which may be the author, writer, countersigner, principal parties involved, and witnesses to the enactment or the subscription; or both. It also expresses the context of the documentation of the action described therein, i. e., enunciation of the means of validation and indication of who is responsible to document the act; and the final formulae.

Notary public (New York)

Notaries public in New York are commissioned by the Secretary of State of New York after passing a short examination in law and procedure and submitting an application for appointment accompanied by the proper fees. A notary's commission is received from and kept on file with the county clerk of the county in which they reside or do business, but notaries are empowered to actually perform their duties anywhere in the state.

A notary public in the Commonwealth of Pennsylvania is empowered to perform six distinct official acts: taking an acknowledgment; administering an oath or affirmation; taking a verification on oath or acknowledgment; witnessing or attesting a signature; certifying or attesting a copy or deposition; and noting a protest of a negotiable instrument. A notary is strictly prohibited from giving legal advice or drafting legal documents such as contracts, mortgages, leases, wills, powers of attorney, liens or bonds.

A notary public in Virginia is authorized to acknowledge signatures, administer oaths, and certify copies. A notary may authenticate a person based upon that person's documentation of their identity, by the notary's own personal knowledge of the person appearing before them, or through credible independent witnesses. A notary may not authenticate their own signature or that of their spouse, nor may a notary authenticate any document to which they or their spouse are a party. An example given is that a notary could authenticate a will, even if they are an executor, but could not do so if they are a beneficiary of that will.

Legal document assistant Non-lawyer who helps prepare legal documents

A legal document assistant in the United States is a non-lawyer authorized to assist with the preparation of legal instruments. Unlike a paralegal, legal document assistants do not work under the supervision of an attorney.

An eNotary is a Notary Public who notarizes documents electronically. One of the methods employed by eNotaries is the use of a digital signature and digital notary seal to notarize digital documents and validate with a digital certificate. Electronic notarization is a process whereby a notary affixes an electronic signature and notary seal using a secure Public key to an electronic document. Once affixed to the electronic document, the document is rendered tamper evident such that unauthorized attempts to alter the document will be evident to relying parties. The e-notary will use cryptography and Public key infrastructure to create, manage, distribute, use, store, and revoke the digital certificate. The Electronic Notary also must keep an electronic register of each act performed.

A certified translation is one which fulfills the requirements in the country in question, enabling it to be used in formal procedures, with the translator accepting responsibility for its accuracy. These requirements vary widely from country to country. While some countries allow only state-appointed translators to produce such translations, others will accept those carried out by any competent bilingual individual. Between these two extremes are countries where a certified translation can be carried out by any professional translator with the correct credentials.

In the U.S. state of Florida, a notary public is a public officer appointed by the governor of the state to take acknowledgments, administer oaths, attest to photocopies of certain documents, solemnize marriage, protest the non-acceptance or non-payment of negotiable instruments, and perform other duties specified by law.

An act is an instrument that records a fact or something that has been said, done, or agreed. Acts generally take the form of legal instruments of writing that have probative value and executory force. They are usually accepted as self-authenticating demonstrative evidence in court proceedings, though with the precarious status of notaries public and their acts under common law, this is not always so.

The 2010 United States foreclosure crisis, sometimes referred to as Foreclosure-gate or Foreclosuregate, refers to a widespread epidemic of improper foreclosures initiated by large banks and other lenders. The foreclosure crisis was extensively covered by news outlets beginning in October 2010, and several large banks—including Bank of America, JP Morgan, Wells Fargo, and Citigroup—responded by halting their temporarily foreclosure proceedings in some or all states. The foreclosure crisis caused significant investor fear in the U.S. A 2014 study published in the American Journal of Public Health linked the foreclosure crisis to an increase in suicide rates.

In the United States, a notary public is a person appointed by a state government, e.g., the governor, lieutenant governor, state secretary, or in some cases the state legislature, and whose primary role is to serve the public as an impartial witness when important documents are signed. Since the notary is a state officer, a notary's duties may vary widely from state to state and in most cases, a notary is barred from acting outside his or her home state unless they also have a commission there as well.

A notarial act is any written narration of facts (recitals) drawn up by a notary, notary public or civil-law notary authenticated by the notary's signature and official seal and detailing a procedure which has been transacted by or before the notary in their official capacity. A notarial act is the only lawful means of proving those facts of which it is the recognized record, whereas on other matters it is usually inadmissible, because, being beyond the powers entrusted to the notary by law, it is non-official. In most common-law countries, multiple-page acts are bound together using a sewn or knotted ribbon, the ends of which are secured by a wafer impressed with the notary's seal. This is called annexing or annexure.

References

  1. "What is a Notary Public?". National Notary Association. Retrieved 9 May 2013.
  2. "Basic Notarial Duties". American Society of Notaries. Retrieved 2019-07-16.
  3. Piombino, Alfred E. (2011). Notary Public Handbook: Principles, Practices & Cases, National Edition (First ed.). East Coast Publishing. ISBN   978-0-9445606-9-3.
  4. "Notaries Are Starting To Put Down The Stamp And Pick Up A Webcam". NPR.org. Retrieved 2017-06-12.