Monday, November 30, 2009

What's So Funny 'Bout Peace, Love and Notarizing?

Well, plenty.

In Virginia, we have a very low threshold for appointing an individual as a notary public. No test, no certification, no coursework. As long as you have a pulse, no prior felonies, and can read and write English (no joke: it's one of the requirements), your commission will be returned by the Secretary of the Commonwealth in a few short weeks.

The problem is that notaries perform really important tasks. They are empowered to administer oaths, and take acknowledgements, affidavits and depositions. But some just don’t really know the basics of this public office. Even though notaries must swear that they have read the Notary Handbook, many notaries are not familiar with Notary “rules of the road.” Or, they may notarize so infrequently that they have forgotten the finer points (like how to notarize someone who is signing under a power of attorney for someone else.)

In my practice, many a deal has been unnecessarily delayed due to notary error. This means one of two things: 1) the legal document can’t do what it needs to do, and 2) the legal document cannot be recorded in the courthouse because of the defect.

So, to borrow from American Idol’s Randy Jackson:

“Yo, All You Notary Dawgs: Listen up. Here are Four Quick Tips for You, Baby:”

1) Apply Your Notary Seal. (Yeah, that thing in the pouch.) If it’s an old, embossed (raised) seal and the document you are notarizing needs to be recorded, you must rub with ink or pencil over the seal so that it becomes “legible and reproducible.” That's been the law since 2008. Also, the seal needs to be applied near the notary's signature, not floating elsewhere on the page. (And if you are recording in the City of Charlottesville, that seal has to be upright, not sideways, or they won’t record it, and whammo, you’ll be voted off the show.)

2) Get ID. This has been required for many years now. You are required to ascertain the identity of the person whose signature you are acknowledging unless they were already personally known to you. Fraud and forgery happen when notaries are tricked.

3) Don’t Notarize Unless You Saw the Person Sign. Sounds basic. Some notaries think it’s ok for them to notarize something that has already been signed by someone they never meet. See above regarding fraud and forgery. You are the sentinel. Do your notary job.


4) Notarize For the Actual Place of Acknowledgement. This means you need to complete the second line in the notary block with the City or County in which you are taking the acknowledgement. Even if it is pre-printed incorrectly with something else! In my experience this is the single biggest notary mistake in notarizing instruments that concern real estate. Notaries want to insert the locale of the property instead of the place where the person is signing before the notary. A person can sign a deed in the City of Staunton conveying property in Henrico County! Be careful and take time to get this right. It’s important.