A settlement company sent out a blast email today with the following:
"We have recently seen that there is a lack of acknowledgement to both the individual and trustee in the notary block.
Please ensure that when there is a vesting in trust that you are recognizing the individual AND the trustee as seen below:
State of Oregon___
County of _Lane
**This record was acknowledged before me on January 6th, 2022 by John Doe, and Jane Doe INDIVIDUALLY; AND as Trustees of the John Doe and Jane Doe revocable trust dated January 6th, 2022."
I am not so sure this is correct. As notaries, we witness a signature that matched an ID that matches a document. I know of no instance where we witness a title–As Trustee–any more than we witness a title as an officer of a company. Someone signs the docs John Doe, President, we acknowledge John Doe, not John Doe, President. Truly, we have no way to verify if Mr. Doe is President of anything, and it’s certainly not our job to do that anyway. That should have been done long before we arrive on the scene.
This same settlement service completes the acknowledgement section on their DOT’s with the full vesting, such as “John Doe and Jane Doe, as Community Property with…” I have been crossing out that language for months and they haven’t said boo about it, nor should they.
Since you give the venue as State of Oregon and County of Lane, my answer is based on you being an Oregon notary and that you would be in Lane county when you take the acknowledgement. If you are in some other state, please ignore this answer.
(1) “Acknowledgment” means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the person identified in the record.
So in Oregon, when a person who is acting as a representative gives an acknowledgement to the notary, they declare to the notary they had proper authority to sign the record. It is the signer, not the notary, who is declaring that the person has proper authority.
Later, in section 194.285 of the law there are short form certificates. Subsection 1 has a form for an acknowlegement in an individual capacity, and subsection 2 has a form for an acknowlegement in a representative capacity. Clearly, Oregon (and Vermont too) expect you to write that the signer signed as a representative, and include the type of authority (trustee), and the party on behalf of whom the representative signed (John Doe and Jane Doe revocable trust dated January 6th, 2022). You’re not certifying it’s true, you are just reporting what the signer told you.
You will want to review the certificate and make sure it has all the information Oregon law requires, such as your title of office and commission expiration date.
I don’t have any opinion on putting the vesting in the acknowledgement certificate.
Hi Ashton. The example with Oregon and Lane County came from the settlement agent, not me. I live in Arizona. Will have to scour through my state’s statutes to see what we require. The email sent out was a blast, likely sent to all their notaries. After six years in the business, without hesitation I can say this is the first time I’m hearing of this. From what I’ve been taught by our Secretary of State’s Office, we should not be doing this. Will hve to check with them and the NNA on Monday.
Quickly skimmed your handbook - found this sample certificate for representative capacity - so I’m guessing yes, you can (and possibly should) be doing it that way. Did not do further research into the actual notary “laws” of Arizona - just the July, 2020 issue of your handbook - it’s near the end.
"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).
(Signature of person taking acknowledgment)
P.S. 25 years as a notary and closing paralegal in CT and 16 years in FL as a notary and on and off legal assistant - this is how we always completed our certs when individual and trust capacity is involved. By the way, after all that time, I’m still not an attorney…soooo…
Hi Linda,
The settlement agent who sent this info out works the entire country, well known, notaries everywhere. Totally caught me off guard, even if it wasn’t directed specifically at me and was just a blanket email blast. I’ve asked them what brought this on, and also asked the SOS office for comment. This is going to be good since very often this settlement agent pre-fills in the acknowledgements on some docs, leaving little to no room for changes without making a real mess of things. Will come back with more info when I have some next week.
PS-if you shoot an email to fbagnato123@gmail.com, I have something you might like to hear.
NNA says this is allowed under AZ law, but not a requirement. In her opinion, if the settlement agent requires it, then they should be putting the language in, not the notary.
I disagree on the part that they should be putting that language in, not the notary … The certificate is they notary’s domain and the notary is responsible for completing their certificate properly.
Don’t shoot the messenger. There is no requirement in Arizona statutes that the “titles” have to be included in the acknowledgement. It’s just something the settlement agent has now decided they want. In most states it’s optional, in California it’s not allowed at all.
I browsed through the Arizona statutes. It appears that Arizona has passed the Revised Uniform Law on Notarial Acts, but it won’t go into effect until June of 2022. Once it goes into effect, the new definition of an acknowledgement will be like the one I posted above, and the new short-form certificates will call for the notary writing, when the signer is a representative, what the title of the signer was and what person or company was being represented.
