Without notaries, business in Massachusetts would effectively come to a halt. A “Notary Public” is apublic servant appointed by the Governor who is empowered to administer oaths and affirmations, perform acknowledgements and witness signatures, and issue subpoenas, among other duties.
There are approximately 155,000 notaries public in Massachusetts. Notaries may be found at City and Town Halls, courts, banks, law offices, insurance companies and online or in the phone book. Notary fees are limited by regulation and can’t exceed $2.00. Also, notaries can’t decline to notarize a document solely because a person is not conducting business at the notary public’s employer. As a result, most notaries don’t charge for their services and employers with available notaries view the service as an opportunity to promote good will.
Notaries are required to have an ink stamp or raised seal, and at the time of notarization they must verify identity and keep a journal. In addition, they are required to perform their duties in accordance with law. For example, an acknowledgement certificate indicates that the signer personally appeared before the notary, was identified by the notary, and acknowledged to the notary that the document was freely signed.
Although people may believe the function of a notary is nothing more than ministerial, the seriousness of their duties is illustrated in a recent case. The Appeals Court determined that the failure of a mother to sign the deed to her son in the presence of the lawyer who notarized her signature, or to acknowledge the signature as hers in his presence, made the acknowledgement certificate defective and rendered the son’s subsequent recording of the deed invalid and unenforceable. In that case, a mother deeded the family home to herself and her son as joint tenants by deed. An attorney prepared the deed and signed the acknowledgement certificate. The son then recorded the deed. However, a few months later the mother established a realty trust and executed another deed conveying the same home to herself and her daughter as co-trustees. The daughter had no knowledge of the prior deed, and the later deed was also recorded. Upon the mother’s death, the son sought to enforce the earlier recorded deed.
The trial court found and the Appeals Court affirmed that although the mother’s signature on the deed was real and had a facially valid acknowledgement certificate, the mother had not in fact either signed the deed or acknowledged her signature in the presence of the notary. Instead, the mother had signed the deed in front of the son who brought it to the notary to complete the acknowledgement. As a result, the son was never entitled to record deed which required an acknowledgment for proper recording such that the later deed to the trust governed the transfer of the property. The case serves as a cautionary lesson that the role and function of a notary can make all the difference for the proper and legal execution of a transaction.