Is a verbal exchange required when taking an acknowledgment?

An acknowledgment is typically defined as a declaration or an indication by the signer of a document, in the presence of an authorized officer, that he or she executed the document voluntarily for the purposes therein expressed. The question arises, what constitutes an "indication" or "declaration"?

"...the person whose acknowledgment is taken must in some way indicate to the officer that the execution of the instrument is his act and deed." (1 Fla Jur, Acknowledgments §11, e.s.)

The phrase "in some way indicate" does not limit the ceremony to the notary formally asking the signer to give an acknowledgment. If a person very willingly and happily presents a document for notarization or executes the document in the notary's presence, these may be sufficient "indications", at the notary's discretion, that the execution of the instrument was the signer’s voluntary act and deed.

Notice that, at least in Florida, the term “acknowledgment” is not defined by statute. The courts have upheld:

“In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” (State v. Hagan, 387 So.2d 945)

The courts have also stated that the term “acknowledgment” is a term of common usage, and can be given its plain and ordinary meaning (State v. Sailer, 645 So.2d 1114). In its ordinary sense, one can “acknowledge” anything without formally declaring it. For example, if one wanted to acknowledge that the weather is cold today, they could wear a heavy coat. This is an "acknowledgment" in the ordinary sense of the word.

An acknowledgment is not an “unequivocal act” like administration of an oath as defined in Youngker v. State, 215 So. 2d 318. There is nothing in any statute or case law, at least in Florida, that clearly defines the taking of an acknowledgment as a verbal exchange.

"If a document is willingly signed in the presence of the Notary, this can serve just as well as an oral statement of acknowledgment.” (Fla. Notary Law Primer, 12th ed., p. 23)

However, particularly if the signer is not well known to you or you are unsure about the signer's willingness to sign, it is recommended that a formal declaration be required, which may be accomplished by the notary asking the signer, "Do you acknowledge that you have executed this document voluntarily for the purposes therein expressed?", to which the signer would answer "Yes" or "I do".

Why we DO notarize documents, and not just signatures

Amongst the members of the notary community, there are many who insist that we "notarize signatures, not documents". This is both true and false.

First and formost, the Florida Statutes do mention the notarization of documents, in addition to the notarization of signature. F.S. 117.05(3) requires that an official seal be affixed to all "notarized paper documents". Section 117.03 states:

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. [Emphasis supplied]

It is not the signature that is "published under notarial seal" - it is the execution of the writing or document. This is particularly true with affidavits. The typical affidavit begins with the wording "Before me, the undersigned authority, personally appeared John Doe ...". The affidavit is usually written in the first person as if the notary is speaking. The entire document is, in itself, the certificate of a notary stating that certain facts were sworn to in his presence. An affidavit without the oath administered by the notary is meaningless; therefore, the notary's role in the execution of an affidavit is much more important than the mere witnessing of a signature.

In addition, pursuant to section 117.04, Florida Statutes, notaries are authorized to "take the acknowledgments of deeds and other instruments of writing for record". It is not only the signature itself that is acknowledged, it is the entire document which is acknowledged. This explains why our statutory form of acknowledgment states, "The foregoing instrument was acknowledged before me", rather than "The foregoing signature was acknowledged before me".

To conclude, the next time you hear someone refer to "notarizing a document", get off the high horse for a second. We actually notarize documents more than we notarize signatures.

What is a Florida Civil-Law Notary?

A Florida civil-law notary, also known as a Florida International Notary, is an officer appointed by the Department of State, rather than the governor, who holds the powers traditionally delegated to notaries in civil-law countries. Although under Florida law, civil-law notaries have all of the same powers and duties as notaries public, they also have much broader and less-regulated authority.

Civil-law notaries must be members of the Florida Bar (for at least 5 years) who practice international law. What makes civil-law notaries so different from regular notaries public is that they are responsible for the entire content of the document. Typically, the documents that civil-law notaries involve themselves in are contracts and other business transaction documents. Whereas a regular notary would simply add an acknowledgment to the end of the document, whereby the signers of the document acknowledge having signed the document willingly, a civil-law notary certifies the actual contents of the document. A civil-law notary can therefore make determinations as to alleged status or capacity. These determinations are found at the end of the document in what are referred to as "notarial acts".

Documents authenticated by a civil-law notary are kept by the notary in what is called a "protocol", which is similar to a notarial journal except that all original documents are kept. The civil-law notary therefore issues certified copies of the document which has the same fource and effect as the original. Original documents are kept by the civil-law notary as long as he holds such position, and upon that notary's death or revocation of his commission, another civil-law notary must inherit the protocol with all of the original documents.

The concept of a civil-law notary is somewhat foreign in the State of Florida, which is a common-law state. The only state in the union which practices civil-law is Louisiana, whose notaries are similary required to be trained in the drafting of documents and mediation between parties to a transaction. Civil-law notaries have general authority to certify an entire transaction as their personal knowledge.

May I take the acknowledgment of or administer an oath to a signer, and then affix my seal and signature at a later time?

In Florida, it is required that the entire notarial act be performed in the presence of the person signing. This includes the affixing of your notarial seal and official signature. Florida Attorney General Opinion 073-185 (dated May 24, 1973) states that the affixing of the notary's seal is a part of the notarial act, and that, because the notarial act must be performed in the presence of the signer, the seal must likewise be affixed in the signer's presence.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA
No. 073-185
1973 Fla. AG LEXIS 215; Op. Att'y Gen. Fla. 1973-185
May 24, 1973

NOTARIES PUBLIC
ELEMENTS OF ACT OF NOTARIZATION--DUTIES RELATED THERETO

SUMMARY:

Notarization of a document is not complete until the statutory requirements are met. The notary public must sign his official signature and the expiration date of his commission, affix his seal, require reasonable identification of the signer, and the signer must be present at the time his signature is notarized. When the person whose signature is being notarized is not present during the notarization, the notary public is derelict in his duty and has violated the provisions of § 117.09(1), F. S.

REQUEST BY:
Joseph P. D'Alessandro, State Attorney, Fort Myers

QUESTION:
When a notary public watches an individual sign a document and the document is held by a person other than the notary public until a later date, at which time the notary affixes his signature, stamp, and seal upon said document, when does a notarization occur, and; has the notary public who performs the notarization at such later date violated Florida laws?

OPINION BY:
Enoch J. Whitney, Assistant Attorney General; David F. Albrecht, Legal Intern

OPINION:
In many cases, for a document to be duly executed and to have legal effect, it is required that the instrument be acknowledged, attested, protested, or published before a notary public. See §§ 117.03 and 117.04, F. S.

In answer to the first part of the above question, I refer you to § 117.07, F. S., as amended by Ch. 72-8, Laws of Florida, which states:

(1) Every notary public in the state shall add to his official signature to any certificate of acknowledgment made before him a statement of the time of the expiration of his commission as notary public in words and figures as follows: "My commission expires ___" (Herein insert the date when the commission expires.)

(2) A notary seal shall be affixed to all documents notarized, which may be of the rubber stamp or impression type and shall include the words "Notary Public--State of Florida at Large." The seal may also include the name of the notary public.

This statute sets forth three of the five elements of notarization: The notary public must sign his official signature; the commission expiration date must accompany the signature; and "a notary seal shall be affixed to all documents." Section 117.09(1), F. S., sets forth two additional requirements of notarization: There must be reasonable proof of the identity of the person whose signature is being notarized; and the signer must be present at the time his signature is notarized.

Under these statutory provisions, I am of the opinion that notarization of a document cannot reach completion until a notary public has complied with the aforesaid statutory requirements.

Answering the second part of your question: Section 117.09, F. S., states, in part, that the person whose signature is being notarized "must be in the presence of the notary public at the time the signature is notarized."

Assuming this requirement is met, there appears to be no legal reason why the notarization of a signature cannot be performed at a date subsequent to the date on which the notary public sees the person sign such signature, so long as all of the above-discussed elements of notarization are fulfilled.

However, if the person whose signature is being notarized is not in the presence of the notary public at the time of notarization, it would appear that the notary has violated § 117.09(1), F. S. In this regard, see DeCamp v. Allen, 156 So.2d 661 (1 D.C.A. Fla., 1963), at 662 and 663, where the court stated that notaries public are "derelict in their duty if they notarize an acknowledgment without the signatories personally appearing before them."

Thus, it appears clear that a notary public is accountable and responsible for seeing that the provisions of Ch. 117, F. S., are adhered to in performing notarizations.

Pocket reference guide for Florida notaries

Download this handy pocket reference guide for Florida notaries: click here.

The one-page document includes the statutory certificates for an acknowledgment individually, acknowledgment in a representative capacity, oath or affirmation (jurat), and attested copy. It also includes a list of the required elements of a Florida notarial certificate, a list of acceptable forms of identification, and important reminders on taking acknowledgments and administering oaths.

What legal services can Florida notaries provide without being accused of UPL?

Unless a notary is also a licensed attorney, he may not give legal advice or accept fees for legal advice. Case law has established what a non-lawyer can provide as legal services (Fla. Bar v. We the People Forms & Serv. Ctr. of Sarasota, Inc., 883 So. 2d 1280). There is nothing prohibiting a non-lawyer notary from selling blank legal forms, from typing in legal forms completed by a client, from selling general printed legal information, or from selling their own notarial services. What a notary can not do is advise a client as to what type of notarization is necessary, make changes to documents prepared by clients, or explain documents to clients.

Of course, notaries who work as a paralegal or legal assistant, under the supervision of an attorney who is a member of the Florida Bar, are free to draft or explain documents under attorney supervision. However, when a notary-paralegal drafts documents, they are doing so in their capacity as a paralegal, and not as a notary. Similarly, notaries employed by title agencies may frequently draft real estate closing documents and explain those documents to clients.

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.