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.

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 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.

How to describe ID in notarial certificates

Florida law requires that notaries specify in their certificate or jurat the type of identification produced to the notary which the notary relied upon to identify the signer of a document. If the signer is personally known to the notary, the notary need not ask for identification; they simply have to state in their certificate that the signer is personally known. However, most of the time the notary will not be personally acquainted with the signer and will need to see some form of identification. The types of identification which a notary may accept are listed in my previous article on "procedures for all notarial acts".

Most of the time, the identification presented is either a Florida driver license or a Florida ID card. What is the best way to describe the type of identification in the notarial certificate?

The statutes do not address the issue. Many notaries simply put "driver license" or "passport", with no other identifying information. Even more notaries simply put "D/L", to abbreviate "driver license". The governor's office advises against this. Although many notary "signing agents" will tell you that the driver license or identification card number should not be stated in the notarial certificate, the governor's office recommends that you include the state who issued the card and the card number, i.e. the certificate would state "...who produced FL Driver License #K123-456-78-900-0 as identification". This provides proof that the signer did personally appear before the notary and that the notary did inspect the identification.

When stating the full driver license number in the certificate, this poses a question about identity theft, particularly when the document is one that will be recorded in official records (such as a deed or a mortgage). If you keep a journal, which is recommended, you should always record the driver license or ID card number in your journal. Since journals are not public record and constitute private notarial papers, which are confidential under Florida law, there is no fear that the driver license numbers recorded in the journal may be misused. Recording the number in your journal eliminates the need to record the information on the notarized document itself. However, sensitive documents such as wills or powers of attorney, which are frequently contested by family members of the decedent or principal, should always have the ID card number stated in the actual certificate.

The bottom line is, you are never "in the wrong" by putting the driver license number in the certificate, because it is specifically recommended by the governor's office. It comes down to personal preference on the notary's part.

What is a proof of execution?

The term "proof of execution" refers to an affidavit by a witness that he or she saw somebody sign a certain document. An example would be where a person executes a deed in the presence of two witnesses but dies before he is able to give his acknowledgment before a notary public. Without such notarization, the deed would be ineligible for public recordation. However, one of the subscribing witnesses to the deed may sign an affidavit before a notary public, in which the witness swears that he saw the grantor (person granting the deed) sign the document and that he did so willingly.

In the unlikely event that one of the witnesses to the original deed was a notary, but did not notarize the deed in his notarial capacity, there is nothing to prevent that notary from notarizing the proof of execution given by the other witness. The Courts have actually stated that a deed attested in that manner is "entitled to more credit as a valid and bona fide instrument", because the notary himself has personal knowledge that the grantor signed the deed (Edwards v. Thom, 25 Fla. 222). In this case, the notary could not "go back" and acknowledge the deed because the deceased grantor would have had to be in the notary's physical presence when the notary signed and sealed the acknowledgment.

"Proof of execution" is not to be used for general notarizations, i.e. you may not notarize a signature on a document if the signer is not in your presence, even if another person swears that they saw the person sign the document. When doing a "proof of execution" you are not notarizing the signature of the original signer; you are only notarizing the signature of the witness who is giving the affidavit.

Can I be both a witness and the notary to a deed or other document?

Yes. The Courts upheld in Edwards v. Thom (25 Fla. 222), that being the notary to a transaction does not render you incompetent as a witness. However, if the pre-printed certificate requires the notary to take the acknowledgment of the witnesses or to swear in the witnesses, the notary may not also serve as a witness because this would cause the notary to notarize his own signature, which is prohibited by Florida law. Particularly with last wills and testaments, both the person making the will and the witnesses are sworn by the notary, therefore the notary could not also serve as a witness to a last will and testament.

If the client only needs me to witness their signature, can I just affix my stamp and signature on the document without any notarial certificate?

No. Witnessing of signatures is not an authorized duty of a notary public, except in correlation with another notarial act. If a customer presents you with a document that has no notarial certificate already printed, you should explain the difference between an acknowledgment and a jurat and ask the customer which one they want you to add. You may then print, type, or stamp the appropriate certificate on the document. If there is no room on the document, you may attach a second page with the appropriate wording. However, if you attach a "loose" certificate, you should notate in the certificate what document the certificate is attached to, to prevent your notarial certificate from being attached to another document.

If I stamp my official seal underneath my signature, does this satisfy the requirement that my commissioned name be printed, typed, or stamped?

Section 117.05(4)(h) of the Florida Statutes requires that a notary must print, type or stamp his or her commissioned name underneath his or her official signature on a notarized document. This requirement is listed separately from the requirement that an official seal be affixed. The official position of the Governor's office is that if you choose to stamp your name underneath your signature, it must be a stamp that contains only your name. This must be done in addition to your official seal.

However, the majority of notaries do not comply with this requirement. Most believe that affixing your seal underneath your signature is sufficient to satisfy both requirement. Of my own personal review of randomly-selected documents, 54% of notaries reviewed attempted to satisfy both requirements by affixing their official seal underneath their signature. Only 39% printed, typed, or stamped (using a separate stamp) the name under the signature.

According to the 1993 edition of the Florida Notary Law Primer (3rd ed.), published by the National Notary Association, effective July 1, 1991, notaries were required to print, type, or stamp their commissioned name underneath their signature on all documents to be recorded. That requirement was extended to all notarized documents effective January 1, 1992. The book states that state officials ensured it was necessary that this be done in addition to affixing the stamp seal in the event the stamp was illegible or not affixed properly.

Of course, one must take into account that the equipment used to record documents was not nearly as high quality as the equipment used by county clerk's today. Rarely does a properly inked seal show up illegible on recorded documents when they are scanned (all clerks now digitally scan documents into the official records rather than microfilm them). I personally have submit a proposed bill to my local representative to abolish this requirement and make other necessary changes to Florida notary law.

As stated above, most notaries do not comply with this requirement. Whether or not you choose to do so is your decision. It must be kept in mind that the purpose of this requirement is to ensure that the notary's name is clearly legible in the event the stamp does not show up on a copied document. By ensuring that your stamp is always well-inked and by using a stamp large enough to be easily read on recorded documents, you most likely do not have to worry about printing, typing or stamping your name under the signature, provided that you do affix your seal underneath your signature in place of the printed name.