26
Feb
13

Notable Issues for Florida Notaries

Questions involving Florida notary public (“notary”) issues are some of the most common questions we receive and reveal some confusion by our agents who also function as Florida notaries. This article will address some of the most commonly misunderstood issues with a special focus on what a Florida notary is not permitted to do under Florida law.

Chapter 117 of the Florida Statutes sets out the duties and obligations of a notary in performing the important functions of administering oaths and taking acknowledgements (other functions performed by notaries, such as attesting to the authenticity of a photocopy, are not addressed in this article). The duties and obligations—and potential liability—of a notary are separate and distinct from those of a title or closing agent.

A commonly misunderstood scenario is one in which the notary acts as both a witness and a notary. While this is perfectly acceptable under Florida law, in order for the notary to properly serve and sign as a “subscribing witness,” the notary must, just like any other witness, actually see the party sign his or her name. In order to take a proper acknowledgement, however, it is not necessary that the signatory sign his or her name in front of the notary—it is only necessary that the signatory appear in front of the notary and “acknowledge” to the notary that the signature on the document is, in fact, his or hers.

Another commonly misunderstood scenario is when a jurat is used instead of an acknowledgement or an acknowledgment is used instead of a jurat. These two notarial certificates are used for two different purposes and are not interchangeable. A jurat is the “sworn to and subscribed before me” language used on affidavits, while a proper acknowledgment, required on all deeds conveying Florida real property, specifically provides that the signatory has acknowledged to the notary that the signature on the document is his or hers. Acceptable forms of jurats and acknowledgements are set out in Florida Statutes, §117. 05. While there may be situations where a “hybrid” jurat/acknowledgement might be acceptable, such as where a jurat on a deed also includes acknowledgement language, such situations should be reviewed by an underwriter.

As a notary, you want to be very careful not do something prohibited under Chapter 117 that could result in the loss of your commission or possibly expose you to civil and/or criminal liability. Florida Statutes, §117.07 specifically sets out the many acts prohibited by a notary. Among those listed in the statute, you are prohibited from notarizing a document if:

• The signer is not in your presence, or is your spouse, son, daughter, mother or father;

• You do not have satisfactory identification for the signer, unless you personally know that person;

• You have a financial interest in or are a party to the underlying transaction;

• It appears that the signer is mentally incapable of understanding the nature and effect of the document, or does not understand or speak English (unless the document is translated into a language the signer does understand);

• The document is incomplete or blank; or

• Your commission has expired.

Properly performing your duties and obligations as a Florida notary can sometimes be difficult and confusing. The Underwriting Department understands and is ready to assist you when you have questions or concerns.

By: Brenda J. Cannon, Esq., Old Republic Nat’l Ins. Co., In The Title Corner, 4th Qtr 2012, Vol 15, Issue 4

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Jennifer Ferri, Owner

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