What is a Notary Public? The shortest and best description is that of an official witness. Notaries verify the identity of those who sign documents and take oaths, and they deter people from denying that they signed a document.
A paralegal who is a Notary deals mostly with Acknowledgments, and Oaths or Affirmations. It is vital to know the difference between these. An acknowledgment, at the end of a document and generally drafted by an attorney, states that the client appeared before the Notary. The Notary has the responsibility to check the client's identity (usually by a photo I.D., like a driver's license) and to ask the signer if he or she is aware of what they are signing.
An Oath is a statement that commonly begins: I hereby swear, under God, that the information in this document is true or I believe it to be true.... An Affirmation is similar, but instead of invoking religion, may begin: I hereby affirm, under penalty of perjury.... Both Oaths and Affirmations have the same legal effect. A knowing falsehood within the document may subject the affiant (the person swearing or affirming) to charges of perjury if the document is affirmed. The Notary should read the passage to the affiant or have the affiant read the passage. The action of stamping the document with the Notary stamp and signing the document is the same as for the Acknowledgment. Legal papers, such as complaints, often have an Affirmation at the end. Court reporters usually become Notaries, so they can administer Oaths at EBT's.
Constituents (people who seek a Notary's services) must always appear before a Notary in person. A Notary may travel to a person who is bedridden, but a Notary must never stamp a document that has been mailed, faxed, or e-mailed without the affiant appearing in person. Attorneys will often ask a Notary to do this, so beware! Notaries are public officials, and will take the blame themselves for any misconduct. The penalties may be a reprimand, fine, loss of commission, imprisonment, and/or exposure to civil liability. Be careful and don't let yourself be pushed around!
Most Notaries in law offices don't charge fees, but if they do, the fees must conform to the fee schedule published by the Secretary of State. An office cannot require a Notary to charge a higher rate (though some banks and other businesses have been known to try). Even if the office pays for the Notary's license fees and supplies, the Notary is a public official and is not working for the office during the Notarial act. The commission belongs to the person and not the office!
A Notary should not read a document in detail (this may lead an affiant to think the document has the Notary's approval, which could result in the unlicensed practice of law) but should check the document for blank spaces, and anything which looks improper or could be fraudulent. A Notary may point out a blank space, but may not tell a constituent what to put in that space, even if the simplest thing is for the constituent to put a line through the space. If you tell a client to do this, it could be construed as giving legal advice.
Should Notaries judge the competency of a signer? This is a current controversy. Many attorneys and doctors feel that Notaries don't have the specialized training to judge competency. However, the Notary's purpose is to deter fraud. Use your head. If a person seems unaware of their surroundings, or doesn't seem to grasp the importance of their document, then consider not notarizing. Always log the details of your refusal so you have a defense if the matter blows up on you. This can be a very touchy and emotional situation that often comes up when notarizing Powers of Attorney.
Can a Notary refuse to act? Only with good cause. Without cause, such as the signer's inadequate I.D., or an incompetent affiant, the Notary could be found in dereliction of duty.
Can a Notary certify a copy of an official document as true? No. Only the agency that issues the document can do that.
Banking Notaries sometimes certify a listing of the contents of a safe deposit box when it is opened by a court order. Questions about this sometimes show up on the test.
What follows is a step by step guide to the Notary Public License Law Study Guide, as published by the Secretary of State. A copy of the guide is available at the website http://www.dos.state.ny.us/licensing/lawbooks/NOTARY.pdf maintained by the State
Professional Conduct - Notaries may not:
1. give advice on the law unless they are lawyers. This includes giving advice on how to fill out a form. A notary may point out blank spaces on a form, but must not suggest how these spaces may be filled in.
2. ask for and get legal business. A notary may not refer constituents to an attorney for a fee or refer constituents to a law office where the notary has a business interest.
3. divide or agree to divide his fees with a lawyer, or accept part of a lawyer's fee on legal business.
4. advertise that he has rights or powers other than those granted by law to notaries (no advertising the unauthorized practice of law).
5. execute an acknowledgment of the execution of a will (in N.Y.S.).
Executive Law
§130. Appointment of notaries public - Appointments are by the secretary of state. The term of appointment for a notary is for four years.(note: this is a change from the prior two year commission.)Applicants must be U.S. citizens, and either a resident of N.Y. State, or have an office or place of business in N.Y. State. If a resident notary leaves the state but retains an office or business in the state, he retains his office as notary. If a notary leaves the state and does not maintain a business here, he vacates his office. Process is served on the Secretary of State on behalf of a non-resident notary. At least a common school education is required of a notary (sixth grade). A notary does not have to be re-tested if he re-applies before the end of his two year term, or if he re-applies within six months of the end of his term. If a notary did not re-apply because he was in the military, he has one year from his date of discharge to re-apply without testing providing his discharge was other than dishonorable. The secretary of state may remove or suspend a notary from office, but only with due process (notary must receive charges against him and have an opportunity to be heard).
A person cannot be appointed a notary if he has been convicted of a felony in any state or territory, or has been convicted of (a) illegally using, carrying, or possessing a pistol or other dangerous weapon; (b) Making or possessing burglar's tools; (c) buying, receiving, or possessing stolen property; (d) unlawful entry of a building; (e) aiding escape from prison; (f) possessing or dealing narcotics; (g) jostling, swindling, harassment by phone, mail, etc., bias assault, loitering for solicitation, unlawful practice of law, soliciting business on behalf of an attorney (capping), entering hospital to seek settlement or release, aiding or abetting solicitation of business for attorney by police or hospital worker, unlawful practice of law by collection agent, fee splitting; (h) vagrancy or prostitution.
§131. Procedure of appointment; fees and commissions
1. Applications and oath of office to secretary of state.
2. Commission effective upon satisfaction of competency and good character by secretary of state.
3. Fee is $60 (up from the $30 fee previously charged for the 2-year commission. It works out to the same per year.)
4. Notary's I.D. card will be mailed.
5. Record kept by county clerk.
6. County clerk will list notaries.
7. Reappointments by county clerk
8. Reappointment effective on county clerk's approval.
9. Reapplication fee is $30.
10. Notice of reappointment goes from county clerk to secretary of state.
11. List of reapplications kept by secretary of state.
12. $10 fee for name changes.
13. Duplicate I.D.'s cost $10 and are stamped "duplicate".
§132. Certificates of official character of notaries public.
Secretary of state or county clerk can certify to the official character of a notary. Notary may file with county clerks in other counties for $10. County clerk collects $5 for each certificate of official character.
§133. Certification of notarial signatures
A certificate from the county clerk authenticating the notary's signature. This allows the document to be recorded or read into evidence. County clerk's fee is $3.
Executive law -§140
14. No person removed from the office of commissioner of deeds for N.Y.C. can be a notary.
15. A person who acts as a notary after the above removal from office is guilty of a misdemeanor.
Election Law -§3-200 and 3-400
Commissioner or inspector of elections is eligible to be a notary. It is not considered to be a conflict of interest.
PUBLIC OFFICERS LAW
§3 Qualifications for holding office, provides that:
Convicted draft dodgers not eligible.
§534. County clerk; appointment of notaries public.
One staff member to be a notary - fees waived to applicant and to general public.
MISCELLANEOUS
Member of legislature
Can be a notary. Sheriffs cannot.(its considered to be a conflict of interest for a sheriff to be a notary.)
Disqualifications
Notary may not act on a case where they would benefit from the transaction.
EXECUTIVE LAW
§134. Signature and seal of county clerk.
can be fax, photo, printed, stamped, engraved.
§135. Powers and duties: Attorneys who are notaries can administer oaths or affirmations to their clients. Notaries civilly liable for their misconduct.
§135-a. Fraud - Misrepresentation as a notary or fraud committed by a notary is a misdemeanor.
§136. Fees - for oath, $2, for acknowledgments, $2
§137. Authority - must sign, add words "Notary Public State of New York", "Certificate filed .......... County. Attorney may sign Attorney and Counselor at Law instead of Notary Public. Also must include official numbers. If these not complied with, act still valid, notary subject to discipline.
§138. Powers of notaries... - notaries or court officers who are officers or stockholders in a corporation can take acknowledgments for that corporation if they do not have a financial interest in that document.
§142-a Validity of acts... - documents that have been improperly notarized are still valid, unless the parties knew of or should have known of the improper notarization. Notaries remain criminally liable for misdeeds.
REAL PROPERTY LAW
§290. Definitions; - Written instruments to transfer real property are called conveyances. Not included are wills, leases for under three years, executory (not completed) contracts, and agency and attorney agreements.
§298. Acknowledgments and proofs within the state - can be made by notaries
§302. Acknowledgments and proofs by married women - Can you believe this? At one time, not so long ago, a married woman needed the approval and signature of her husband to own or transfer real property, even though she was the sole owner. Now, a husband's approval is no longer required.
§303. Requisites of acknowledgments - no acknowledgments if there is a question of identity.
§304. Proof by subscribing witness - used when someone other than the notary witnesses the execution of the conveyance. Not the best thing to do on a document.
§306. Certificate of acknowledgment or proof - a written statement supplied by a subscribing witness to substantiate his action.
§309 a & b.Acknowledgment by corporation and form of certificate- must be by qualified officer of or attorney of the corporation. Follow format. The attorney who drafts the document usually does this.
§330. Officers guilty of malfeasance liable for damages - to injured party
§333. When conveyances of real property not to be recorded - (a) when conveyance is not complete, (b) when non-English conveyance lacks an authenticated translation.
SPECIAL NOTE
Certificate of authentication from a county clerk no longer required. Notary's jurisdiction is now statewide. Certificate of Official Character may still be obtained for the convenience of the notary's constituents, if they seek verification.
BANKING LAW
§335 - Notary may witness opening of abandoned safe deposit box. Certificate under seal stating date of opening, name of lessee, and contents shall be filed with bank (lessor) and copy mailed to last address of lessee within 10 days.
CIVIL PRACTICE LAW AND RULES
Rule 3113 - deposition can be taken before a notary public in civil proceeding. This is why Court Reporters are usually Notaries. Remember, no civil depositions on Sunday!
DOMESTIC RELATIONS LAW
§11 - Notaries cannot perform marriages (in New York State).
PUBLIC OFFICERS LAW
§10- Notary can administer oath of a public officer
JUDICIARY LAW
§484. None but attorneys to practice in the state. self explanatory. Notaries cannot practice law unless they are lawyers.
§485. Violation of preceding sections a misdemeanor
§750. Unlawful practice of law
is criminal contempt
Notaries cannot execute wills unless they are attorneys.
PUBLIC OFFICERS LAW
Notaries cannot officially act unless they have taken and filed their oath of office.
§67. Fees -1. Public officers cannot refuse duty. 2. Can't charge more than law allows. 3. No charge for services not rendered. 4. Injured party gets treble damages if the preceding rules are violated.
§69. No fee for official oaths.
EXECUTIVE LAW - Notaries will be removed from office for misconduct (fraud).
§70. Class D felonies will have a sentence of 3 to 7 years, class E, 3 to 4 years, maximum. Know this for the test!
§70.15 sentence for class A misdemeanor shall be definite and not over one year.
§170.10 Falsely making, completing, or altering a written instrument with intent to defraud is forgery in the second degree. (Class D Felony)
§175.40 Issuing a false certificate is a class E felony.
§195. 00 Official misconduct- unauthorized use of official functions or neglect of a duty (class A misdemeanor). Notaries cannot refuse to act when they are required to do so. I don't think the law would require a notary to act if a request for an acknowledgment was made at 2:00 AM!
Perjury - false testimony under oath or affirmation.
About the Test
§70, §170.10, and §175.4 are usually on the test.
Study the vocabulary in the booklet pages 15 - 20
Memorize the schedule of fees on page 20.
Don't worry about the misdemeanors that disqualify a person from becoming a notary in §130. Just know that they include intentional acts that would harm another person, or could be construed as "moral turpitude".
The test consists of 40 multiple choice questions on a scantron type form. The questions are well written with no ambiguities. The proctors will not answer questions about the test. It is a typical standardized government test. One of the answer choices is usually way off base, and another can usually be eliminated by careful reading of the question. Of the last two, one is the common error that people make on that question. So, if you don't know the answer, you can usually work the problem down to a 50-50 guess.
You are given one hour to complete the test, and it usually takes only about 15 minutes, so don't rush.
The test is given every Wednesday at 9:30 AM and 11:00 AM in the State Office Building in Hauppauge. Bring Photo ID (vital!) and #2 pencils, and check or money order for $15.00 payable to the Department of State, or a VISA or Master Card. They don't accept cash, and they won't let you in late.
Good Luck!