What does the phrase "and who did/did not take an oath" mean, and what do I do with it?

For only one year did the phrase "who did/did not take an oath" appear in Florida Statutes, and yet it became such a popular phrase that it is now standard on many pre-printed forms. It is important that you know how to deal with this wording in the appropriate manner to avoid contradicting yourself.

If the pre-printed certificate is an acknowledgment, you should first be sure that the document doesn't require an oath. Look for the words "sworn", "swear", or "affirm" in the document. Many times, if the document is an affidavit, it will open with the wording "Before me personally appeared _________, who being duly sworn deposes and says:". In this instance, the document requires a jurat rather than an acknowledgment, and you should therefore strike out the certificate and replace it with a jurat. If the document doesn't require an oath, you may use the pre-printed acknowledgment certificate. In this case, if the phrase "who did/did not take an oath" appears, you may strike out the entire phrase, or you may strike out the word "did" and underline or circle "did not", so it reads "who did/did not take an oath". You should not simply leave the phrase as is; you must either select an option or strike it completely.

When taking an acknowledgment, an oath is not necessary. An acknowledgment is only an indication by the signer that the signature on the document is their own, and that they executed the document voluntarily, in their authorized capacity, for the purposes therein expressed. This declaration is not sworn to by the signer; it is simply declared or indicated.

Archie v. State, 660 So.2d 348 (Fla. 1st DCA 1995), discusses "acknowledgments under oath" in its dissenting opinion. The dissenting judge in that case, in reference to an acknowledgment certificate containing the phrase "and who did take an oath", stated:

"An 'acknowledgment', even under oath, is nothing more than a confirmation by [the signer] that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct."

Thus, an acknowledgment certificate containing the phrase "who did take an oath" requires the signer of the document to swear that the signature is genuine. Administering such an oath does not make the acknowledgment any more or any less valid; it is, in all reality, completely unnecessary. In addition, you should specifically note that adding the phrase "who did take an oath" to an acknowledgment does not make the certificate a jurat, and it is therefore unacceptable for use on an affidavit or other document requiring an oath to be administered.

If the "who did/did not take an oath" language is printed in a jurat, you must always indicate that the signer did take an oath. If you state that the document was "sworn to", but that an oath was not taken, you are contradicting yourself.

Notary 101: What is the difference between a jurat/oath and an acknowledgment?

The most important thing a notary must know is the difference between an oath and an acknowledgment. Each of these duties are described in detail in previous articles, but a simple explanation is provided in Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989):

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit [jurat] [...], the person swearing before the notary must under oath attest that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.

What are the authorized uses of the notary seal?

The law establishing the official seal of notaries public is set forth in section 117.05(3) of the Florida Statutes. That statute authorizes a notary public seal to be affixed to all "notarized paper documents", and defines "official seal" as the rubber stamp (as discussed in a separate article regarding the components of a notary public's seal).

The question arises, what constitutes a "notarized paper document" which permits the affixation of a notary seal? The phrase "notarization" is not defined by statute, but when "notarizing a signature" it is implied that you are either taking an acknowledgment or administering an oath on a paper document. Thus, it is obvious that a notary seal should be used for these notarial acts. In addition, F.S. 117.05(4)(i) requires that when notarizing a signature, a notary public shall complete a jurat or notarial certificate, which must contain the notary's official seal affixed below or to either side of the notary's signature.

There are other instances under Florida law where a notary seal may be used. F.S. 117.05(12)(b) authorized use of a notary seal when attesting to a photocopy. F.S. 117.03 states that a notary public may administer an oath and make a certificate thereof when it is necessary for the execution of any writing or document to be published under the seal of a notary public.

Although not specifically authorized or required by law, notaries traditionally use their seal for other official acts, including drafting protests, verifying a Vehicle Identification Number, drafting a certificate of the contents of a safe deposit box, or solemnizing the rites of matrimony (performing a marriage ceremony). These uses have been approved by the governor's office. However, aside from these exceptions, the notary seal should not be affixed to any other documents not being executed as the notary's official act. Although other uses of the seal are not specifically prohibited by law, a good rule of thumb to keep in notarial practices is, "If it is not specifically authorized by law, it is probably best not to do it."

A notary may never simply "witness a signature" and affix their seal to a document without completing a notarial certificate.

Why do we need notaries?

The public generally views notaries as a seemingly unimportant inconvenience. To them, all notaries do is match signatures to IDs. They don't care about the notarial act or proper notarial procedures; they just want "the stamp" so they can "legalize" their document and go about their business.

Unfortunately, many notaries themselves also view their public office in this same light. Many notaries who become commissioned for their jobs chose to "get their notary" or "get their stamp" so they could "seal the deal" and get the job done, whether it meant notarizing without the signer present, backdating, overlooking lack of identification, and so on. Yes, these are the notaries who don't complete the venue, don't administer an oath, don't use an embosser, don't print their name under their signature, combine oaths and acknowledgments in the same certificate, and certainly can't be bothered with keeping a notary journal, a tradition which goes back hundreds and hundreds of years to Roman times.

These notaries are the ones who have brought the overall standard of the office of notary public down. A hundred years ago, notaries were publicly perceived as being of valuable service to the public. The reason we still need notaries today is the same reason we needed them a hundred years ago.

The government can not be everywhere at once. The public does not have easy access to a judge to authenticate their documents. Without notaries, people would have to take time off of work, travel to a courthouse, very likely wait long amounts of time, and have a judge formally take the person's acknowledgment of execution of a deed or other document. Were that the case, the public would be begging the government to appoint local officials to assist them in their everyday transactions. Hence, the appointment of the first notaries public nearly 200 years ago in the State of Florida.

A good way to look at notaries is to view them as state officers whom the governor appoints and sends out into the community to assist the citizens in transforming their private transactions and documents into public transactions and documents, thus allowing their documents to be recorded, accepted by government agencies, and accepted by the court. Notaries, in their capacity as state officers, serve as state witnesses to ensure that no document is signed under duress and that signers of documents have full understanding of the documents content's, and, if necessary, that the signers have sworn to the document's contents.

In recent years, the purpose of notaries has increased to include a deterrent to identity fraud. Thus, notaries began to check identification and make sure that the signer of the document is the person they claim to be. Without these important public officials, public records would be unreliable and inconsistent, and forgery and other fraud would be rampant.

This is not to say that the current system for appointing notaries is perfect. To the contrary, the government's system of approving all notary applicants with very limited education, regardless of their career background, has made the very important notarial acts of taking acknowledgments and administering oaths fade into the background, as the public only wants "their notary stamp" and doesn't care whether the notary administers an actual oath or takes an actual acknowledgment. Perhaps bringing the office of Notary Public "back to basics" would raise the standard of the office and would increase public awareness of the very important duties with which notaries public have been entrusted by the state.

The world still needs notaries. We daily prevent fraudulent power of attorneys from being obtained over incompetent seniors. We daily prevent fraudulent transfer of real and personal property. We daily enforce justice by subjecting those who lie under oath to criminal punishment. We daily prevent identity fraud by verifying capacity to execute documents. We do not simply "verify signatures", nor do we "witness signatures", "verify identification", and we certainly do not just simply "stamp things". Notaries public have a long history of serving the people of Florida; and although the people of Florida may not realize just how vital notaries are, we do serve as public officers of the state who do our very best to ensure that no transaction is made fraudulently.

Is it illegal to alter a completed notarial certificate?

Yes. Neither the notary nor any other person or entity may alter a completed notarial certificate. F.S. 117.107(8) provides:

A notary public may not amend a notarial certificate after the notarization is complete.

In addition, F.S. 831.01 provides:

Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any [...] notary public [...] shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Unique Jurats

As discussed in my previous post about administering oaths, a jurat is a certificate given under the hand and seal of the notary public where they certify that the signer of a certain document took an oath that the document's contents are correct and signed the document in the notary's presence. Most jurats a notary comes across will be fairly similar to the one provided in Florida Statutes, i.e.:

STATE OF FLORIDA
COUNTY OF ________________

Sworn to (or affirmed) and subscribed before me this _____ day of ___________, 20__, by __________________________, who [ ] is personally known to me or [ ] has produced ____________________________ as identification.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

If the jurat does not contain all of the above information, such as the venue or type of identification, the Florida notary must, of course, add this information to the certificate, either by printing or typing the additional information onto the pre-printed certificate, or by making a new certificate.

However, although the above form of jurat is certainly the most common, it does not necessarily preclude the use of other forms, provided that the form used contains all of the required information. Another acceptable jurat form would be:

State of Florida
County of __________________

The above named affiant, _________________________, proved to me on the basis of (type of identification) , personally appeared before me, the undersigned Notary Public, and, being by me duly sworn, did depose and state under oath the the statements contained in the foregoing instrument are true and correct to the best of his knowledge, and he did thereupon subscribe his name to the foregoing instrument in my presence, this ______ day of ______________________, 20_____.

_______________________________
Name of Notary Public: ____________________
Notary Public - State of Florida
My Commission Expires:
_______________________________

Although this form may throw you off, it does contain all of the required elements of a jurat under Florida law and is therefore perfectly acceptable.

Another thing to keep in mind is that Florida law distinguishes "administering oaths" and "taking affidavits" as two separate acts under F.S. 92.50. However, in reality, an affidavit is nothing more than a sworn statement made before an officer authorized to administer oaths. It is not considered Unauthorized practice of law for a notary to draft an affidavit for a client; that is, if a client comes to a notary and states that they wish to make a sworn statement, the notary may write or type the statement onto an affidavit form, and "take the affidavit" by administering an oath and executing a jurat. An affidavit is typically made in the following form:

STATE OF FLORIDA
COUNTY OF _________________

Before me, the undersigned authority, personally appeared (name of affiant), who, being by me duly sworn, deposes and says:

(sworn statements are inserted here)

________________________________
(Signature of affiant)

Sworn to (or affirmed) and subscribed before me this _____ day of ___________, 20__, by __________________________, who [ ] is personally known to me or [ ] has produced ____________________________ as identification.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

You will note that the venue is not required to be immediately above the jurat because it already is stated at the beginning of the affidavit where the notary's certificate begins ("Before me, the undersigned authority...").

Since the taking of affidavits is an authorized duty of a notary public considered separate from general administration of oaths, a notary could also make a sworn statement into an affidavit (at the request of the client) by using the following certificate:

STATE OF FLORIDA
COUNTY OF __________________

The foregoing affidavit was taken by me, the undersigned officer, by virtue of the authority in me vested, the same having been this day sworn to and subscribed in my presence by the within-named _____(name of affiant)______, who [ ] is personally known to me or [ ] has produced _________________ as identification.

Given under my hand and official seal, this _____ day of _______________, 20___.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

Statutory Short Forms of Acknowledgment

Section 695.25 of the Florida Statutes provides "short forms" of acknowledgment certificates that are sufficient for their respective purposes under any law of the State of Florida. These forms do not, of course, preclude the use of the acknowledgment certificates set forth in chapter 117, F.S., nor do they preclude the use of formal "long form" acknowledgments. However, particularly for real estate related documents, the majority of documents you come across as a notary will use these forms. Therefore, it is important that the notary have a thorough understanding of these "Statutory Short Forms of Acknowledgment".

The most common mistake that notaries make with these forms is in notating the method of identification. The statutory forms use the phrase "who is personally known to me or has produced _______ as identification", but they do not provide check boxes or other means for a notary to select the appropriate option. Therefore many notaries simply leave the phrase alone if the signer is personally known, or, if the signer produces identification, they simply fill in the type of identification in the blank space. However, even leaving the phrase as "who is personally known to me or has produced a Florida driver's license as identification" leaves both methods of identification as possibilities without specific notation as to which was used.

It is therefore imperative that the notary circle or underline the appropriate option and strike out the remaining portion. Therefore, if the signer is personally known to you, the phrase should appear as:

who is personally known to me or who has produced ________________ as identification.

Likewise, if identification is used, the phrase should appear as:

who is personally known to me or who has produced Florida driver license as identification.

If the certificate provides checkboxes however, it is sufficient to simply check off the applicable option without striking out any language, as in "who [ ] is personally known to me or [ X ] has produced FL Driver License #1234567 as identification".

You will also notice that underneath the signature line are spaces for the notary to print his commissioned name, print his title or rank (i.e. "Notary Public - State of Florida"), and serial number (i.e. commission number -or- Notary I.D. number, depending on personal preferenced - this is further discussed in a separate article).

(1) For an individual acting in his or her own right:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of person acknowledging), who is personally known to me or who has produced (type of identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(2) For a corporation:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/she is personally known to me or has produced (type of identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(3) For a partnership:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of acknowledging partner or agent), partner (or agent) on behalf of (name of
partnership), a partnership. He/she is personally known to me or has produced (type of identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(4) For an individual acting as principal by an attorney in fact:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of attorney in fact) as attorney in fact, who is personally known to me or who has produced (type of identification) as identification on behalf of (name of principal).

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(5) By any public officer, trustee, or personal representative:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name and title of position), who is personally known to me or who has produced (type of
identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)