Posted by CarolynCO on 7/27/04 10:31am
Msg #5043

Colorado

I contacted the SOS re witness requirements and got the following response:

"Colorado notary law, as you point out, is silent as to witness requirements on any type of transaction. This is because witness requirements are not governed by notary law, but by the law governing the transaction and by the requirements of the parties and/or filing authorities for the documents associated with the transaction. Examples: Witness requirements for wills and trusts are governed by testamentary, probate, banking, and other applicable regulatory provisions, as well as the requirements of testators, trustees, probate courts, etc.; witness requirements for deeds are governed by real estate and recording laws, as well as by the requirements of lenders, title companies, filing officers, etc.; and the same is true of other types of documents and transactions.

It is not the notary's responsibility to know such witness requirements. A notary may incur liabilities and problems, and even prosecution for the unauthorized practice of law, by advising clients (or making recommendations) about the witness requirements for various documents. Since the requirements vary from state to state, and even from transaction to transaction, the client should consult his/her attorney, not his/her notary, about any applicable witness requirements for any specific document.

If you are asked to notarize for witnesses, as well as the principal signer(s), of a particular document, you may use for your notarization certificate(s) either: (1) The pre-printed notarial certificate for each witness often found on documents that routinely require witnesses; (2) A notarial certificate you add yourself for the witness(es); (3) The signer's certificate, if it has space(s) for the witness name(s); or (4) A loose certificate. Note that if you use a loose certificate for any notarization, you should describe the document briefly in the notarization itself, so that the loose certificate cannot be detached and placed with another document.

Thank you,
Licensing Division/jb"

Reply by PAW Notary Services on 7/27/04 1:39pm
Msg #5057

Thank you for publishing that information. In our particular situations, the witness requirements are usually associated with the deeds and property conveyance laws and pertain to the where the deed/mortgage will be recorded. The CO SOS agrees with every other SOS that I have had dealings with or from what other knowledgeable NSA's have told me, that it is not the NSA's responsibility to know the laws of the recording state. The lender and/or title company must provide the witness requirements to the NSA.

I do suggest, however, that prudent NSA's that go the extra step, will note the property location and see if it falls under one of the handful of states that do have a witness requirement. If the NSA is not informed of any requirement, a quick phone call from the NSA to the title company may save the borrower a missed rate or delayed funding. And, it will be positively looked upon by the title company. NSA's need all the brownie points they can collect to distance themselves from the "point and sign here, I'm only a notary" group.

From my notes, here's my list of the states that require witnesses:

2004 State Witness Requirements
-------------------------------
CT - 2 witnesses, one can be the notary
FL - 2 witnesses, one can be the notary - DEEDS OF CONVEYANCE ONLY, not mortgages
GA - 2 witnesses, one MUST be the notary
LA - 2 witnesses, CANNOT be the notary
SC - 2 witnesses, one can be the notary
VT - 2 witnesses, one MUST be the notary

NOTES:
1) FL - Mortgages DO NOT require witnesses, DEEDS (QuitClaim, Warranty, etc.) do
2) MI - witnesses are no longer required
3) Lenders may require witnesses, even though there is no state requirement.

As you can see, there are only 6 states where deeds and/or mortgages must be witnessed. It's not that difficult to check the list when you see the property location.

Reply by CarolynCO on 7/27/04 5:54pm
Msg #5088

I knew that Colorado is a spousal state. I didn't think that we were a witness state, but I wanted to verify it, even though I haven't been called on the carpet for ignorning it it in my signings. Although I've been a notary for 11 years and have notarized numerous legal docs, I've only been a NSA since April.