by Margaret Shea Burnham
 |
The following article appeared in the September 1992 edition of LML Today, a quarterly publication of Lawyers Mutual Liability Insurance Company of North Carolina. The author is a law partner practicing real property law and litigation at the Adams, Kleemeier law firm in Greensboro. The article is reprinted here with her permission (with modifications to address issues pertinent to real estate licensees). |
A little-publicized rewrite of the notary statute (in the General Statutes of North Carolina) which took effect October 1, 1991, has significant impact on the responsibilities of a notary. It requires strict compliance, apparently as a result of fraudulent transactions made possible in the past by lax compliance of the notary's responsibilities. The key provisions of the statute that are discussed in this article are relevant to real estate licensees because of the many notarized documents that are a part of every real estate transaction.
Acknowledgment vs. Oath
One key distinction is made between a mere "acknowledgment" and a more solemn "oath" or "affirmation." An acknowledgement is the simple act of a notary certifying that a signer "has admitted, in the notary's presence, having signed a document voluntarily." A document which requires an oath or affirmation' on the other hand, is a certification by the notary that the signer "made a vow or affirmation in the presence of the notary.
When was the last time you carefully checked to see if the words "sworn to" or "duly sworn' appeared in small print? Presumably a sworn document, such as an affidavit, is defective if the signer did not actually take an oath upon signing it.
The notary statute does not actually define an acceptable oath or affirmation. However, the statute that addresses oaths and affirmations requires that a party lay his or her hand on the Holy Scriptures when taking an oath. In the alternative, a person "conscientiously scrupulous of taking a book oath may stand with his or her right hand lifted upwards, and "appeal to God, as a witness of the truth and the avenger of falsehood."
The statute permits a person who has conscientious scruples" against either type of oath to substitute the word "affirm" for "swear" and to delete "so help me God" at the end of the oath.
The Notary Public Guidebook for North Carolina (1991, Institute of Government, P. 84) offers the following example of an oath or affirmation for a simple affidavit:
Do you swear [or affirm] that the statements contained in this writing are the truth, by your own knowledge or by your information and belief, so help you God?
Identification of the Signer
Another key provision of the notary statute is in the definition of acceptable identification of the signer by the notary. Identification may be by either of the following:
a.One current document issued by a federal or state government with the individual's photograph. [or]
b. Identification by a credible person who is personally known by the notary and who has personal knowledge of the individual's identity.
The term "personal knowledge" is defined as "familiarity with an individual resulting from interactions with that individual over a period of time sufficient to eliminate every reasonable doubt that the individual has the identity claimed."
What does this mean? It means that unless you want to keep a log of who verified the person's identity, you better get identification such as a driver's license. To be prudent, you might make a note of what form of identification was presented and maybe even put a copy of it in your file. As to relying on someone "credible" for a personal identification, keep in mind whether the person identifying the signer for you has an "interest" in the document or transaction.
Beware of the "Traps"
In a recent transaction, a man presented a woman as his "wife" to a notary. The notary personally knew the man, so he would seem credible. But in this case, the man did not bring his "real" wife and the document notarized was thus ineffective. You should therefore question whether an agent, a lender, etc., who knows a party from only one transaction has the requisite "familiarity."
Change of Notary's Name
Notaries are now required to notify the Secretary of State of a change of address or name within 30 days of the change. Once your name has changed, a new notary commission will be issued in the new name, and you cannot keep using the old notary commission.
Statutory Penalties
Penalties for violation of the notary statute include a $500 fine and/or imprisonment up to 60 days. It is a felony to take an acknowledgement that is false or fraudulent. A person who "knowingly solicits or coerces" a notary to violate the statute is guilty of a misdemeanor and is subject to a fine and/or imprisonment.
Caveat
Because of the many documents that must be notarized in real estate transactions, licensees are reminded to exercise care when choosing the services of a notary or acting as a notary themselves. Licensees who are commissioned as notaries are further reminded of the consequences of noncompliance with the notary statute and are urged to take their responsibilities seriously.
For a current copy of the Notary Public Guidebook for North Carolina, call the Institute of Government at (919) 966-4119 ($5.00 + 6% tax per copy) or check with your local community college bookstore.
A "Check List' for Notaries
1. Check to see if "sworn to" or "duly sworn' appears in small print. If so, require signer to place his/her hand on the appropriate Holy Scriptures (unless signer objects), or stand and raise right hand, and repeat oath. For affirmation, the signer simply repeats the affirmation, without any formalities.
2. Identify signer by:
a. requiring current government document with photograph; i.e., driver's license.:: [or]
b. relying on "credible" person (personally known by notary) who has "personal knowledge" of signer.(1) Expect to receive new commission seal.
(2) Discard outdated commission seal.3. Notify Secretary of State s Office within 30 days when you change your
a. address. ....
b. name.4. Be aware of statutory penalties:
a. $500 fine [and/or]
b. imprisonment.