Performing Notarial Acts Flashcards
Presence Requirement When Notarizing:
The basic role of a notary public in our legal system and in the world of commerce is to prevent fraud. Notaries deter fraud when they perform their duties with diligence and obey the laws governing their duties.
Presence Requirement When Notarizing:
The most basic requirement for performing a notarization is that the person who is taking an oath or making an acknowledgment (the one whose signature is being notarized) must be present at the time of the notarization. The presence requirement refers to physical presence.
Florida Statutes section 117.107(9) provides that:
- Violation of section 117.105 constitutes a third-degree felony for fraudulently taking an acknowledgment or making a false notary certificate.
- There is no exception to the presence requirement!
A notary public may not notarize a signature on a document if the person is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this paragraph is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and that conduct constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense to the civil infraction specified in this paragraph that the notary public acted without intent to defraud. A notary public who violates this paragraph with the intent to defraud is guilty of violating s. 117.105.
Examine the Document.
It is not necessary to read every word of the document, but you should scan the entire document to make sure it is complete BEFORE notarizing.
Check the Notarial Certificate.
First, look at the venue: State of Florida, County of _____. This language should reflect the location where the document is being notarized. If it is incorrect, change the language and initial the change BEFORE notarizing.
Check the Notarial Certificate.
Second, check the date. If an incorrect date has been filled in, strike through that date, write in the correct date, and initial the change BEFORE notarizing. The correct date is the actual date of notarization.
Check the Notarial Certificate.
Third, look for the key words, “sworn” or “acknowledged”, to determine if you are to administer an oath or take an acknowledgment. If the document does not have a notarial certificate, the signer must tell you which notarial act the document requires. At the signer’s direction, you may write or type the appropriate certificate on the document.
Identify the Person.
This is one of the most important steps. You must either personally know the signer or see one of the acceptable forms of identification specified in the notary law. See identification for information on specific types of acceptable identification.
Assure that the Signer Understands the Document.
You are not responsible for the contents of the document; however, you should be satisfied that the signer has read and understands the document, and that the signer is competent and willing to sign. If the signer has unanswered questions about the document or its effect, you should refer him or her to an attorney and not notarize. If the signer is blind or illiterate, read the document to him or her. If the signer does not understand English, make sure that the document is translated into a language that the person understands.
Administer the Oath or Take the Acknowledgment.
When administering an oath, make sure that the person understands that he or she is swearing (or affirming) that the contents of the document are true. When taking an acknowledgment, make sure that the person is entering into the transaction of his or her own free will.
Complete the Jurat or Certificate.
Make sure that the jurat or certificate contains all the information required by law. If the certificate is incomplete, write in the additional information. Sign your name, print or type your name below your signature, and affix your notary seal.
Notarial Certificates
When performing notarizations, you are generally required to complete a notarial certificate of the act. The certificate is a record of what occurred at the time of the notarization, and you are responsible for ensuring that the certificate is complete and accurate.
Notarial Certificates contain 9 basic elements :
venue (the location of the notarization)
type of notarial act (oath/affirmation or acknowledgment)
that the signer personally appeared before the notary (“before me”)
actual date of notarization
name of person whose signature is being notarized
form of identification
signature of notary
name of notary
printed/typed/stamped below signature
notary seal (with the 4 essential elements)
“Loose Certificates”
Preprinted notarial certificates designed to be attached to a document should be used only in rare circumstances. Most documents will have a notarial certificate already printed on the document. Use that certificate, but make it comply with Florida law, if necessary. If the document has no notarial certificate, you should ask the document signer which notarial act is required for the execution of the document (an oath/affirmation or an acknowledgment). At the signer’s direction, you may type or print the appropriate certificate on the document below the designated signature line for the document signer. Only in rare circumstances should you actually attach a “loose certificate.” If you do, be sure to state in the notarial certificate the exact document and signature to which the notarization applies.
Documents Prepared or Notarized in Other States:
When notarizing a signature on a document that was prepared in another state, make sure that you add the required information to make your notarial certificate comply with Florida law. This means that you may have to change the venue (State of Florida, County of _____________), add the type of identification, etc.
Documents Prepared or Notarized in Other States:
Documents notarized in another state must be notarized according to the laws of that state by an officer authorized to act in that state, and will be accepted in Florida, if properly notarized. To determine if a notarization complies with that state’s laws, you may contact the state’s agency that appoints notaries (generally the Governor or Secretary of State).
Corrections:
When necessary to correct information already printed in the notarial certificate, i.e., the date, the name of the person whose signature is being notarized, do not use correction fluid. Simply mark through the incorrect information and make the change before you complete the notarization. You should probably initial that change, also.
Corrections:
Once you “complete” the notarization and return it to the document signer, you may not amend your certificate. For instance, if you forgot to state the type of identification or affix your seal and the document is returned to you on a later date by the receiving party, you may not correct your error. The document will require re-notarization, including the presence of the document signer.
Corrections:
These notarial certificates are reprints of the forms provided in the Florida Statutes, sections 117.05(13). These forms do not preclude the use of other forms; however, any form that is used must contain all the required information.
For an oath or affirmation (jurat)
https://notaries.dos.state.fl.us/education/images/OATH.GIF
For an acknowledgement in an individual capacity:
https://notaries.dos.state.fl.us/education/images/ACKNOWL.GIF
Statutory Short Forms of Acknowledgment
The notarial certificates on this page are found in the real estate chapter of the Florida Statutes but may be used for any notarization requiring an acknowledgment (See section 695.25, Florida Statutes). Although these certificates appear in a slightly different format, each one contains the same elements required in the notary law, Chapter 117. When using one of these certificates, be sure that you circle or underline the appropriate method of identification.