Posted by MelissaM_FL on 5/25/10 7:15am Msg #337991
What Would You Do?
I had a borrower at a recent loan signing who brought in an additional deed to be signed after he did his cash purchase of a property. The Quit Claim Deed had been drawn by his mother (or step-mother, not sure on the family relationship). It did not include a legal description or address for the property (although the form did have spaces for both), but had the purchaser adding three other people to his deed with him. The other three people were present and included his 8 and 9 year old brothers, along with his newborn step-brother.
The QCD had signature lines for the purchaser and the step-mother and no witness lines.
Would you notarize this document? Why or why not?
I refused the notarization on the grounds that the document was not complete (no address or legal description for the property) and advised the purchaser that he might wish to consult with an attorney. His ultimate goal was to insure that his brothers would inherit his property if something happened to him, which is admirable, but, I cannot notarize a document that is incomplete.
I realize there are several other problems with the deed, but I felt that explaining those details would constitute UPL on my part.
Reply by Robert/FL on 5/25/10 7:22am Msg #337992
I once had these guys bring in a QCD that they obviously drew themselves. Not only did it have no space for witnesses but it had me notarizing both the grantor's *and* the grantee's signatures. Obviously, we all know this is incorrect. But, since these people were not clients of the law firm I work at I really had no need to desire to explain to them what was wrong with it. I notarized it as requested and sent them on their way with me $10.00 richer. Looking back on it, I should have just attached a separate certificate for the second signer and charged them $20.00, but oh well.
I later checked county records and found that the deed was accepted for recording. Now, if the transaction were to ever be called into a court of law, there will probably be an issue, because case law says that without the two witnesses required by law, it doesn't make "constructive notice" or something like that.
But, hey, if they feel comfortable drafting the deed themselves then they need to take responsibility for any problems.
I really have resentment towards these people that try to draft important legal documents without consulting with an attorney or even a document preparation service. Wills and deeds are the biggest nightmares. But, they are not paying me to examine their document for accuracy. They are paying me to notarize their signature, so that is all I'm willing to do in this instance. Maybe next time they will consult with an attorney.
Reply by mwm143 on 5/25/10 7:46am Msg #337994
You're notarizing signatures not documents.
Reply by Robert/FL on 5/25/10 8:05am Msg #337995
Section 117.05(3)(a), Florida Statutes: "A notary public seal shall be affixed to all notarized paper documents..."
Reply by MelissaM_FL on 5/25/10 8:14am Msg #337996
I'm not sure what "A notary public seal shall be affixed to all notarized paper documents..." has to do with my refusal to notarize an incomplete document.
Reply by PAW on 5/25/10 8:39am Msg #338001
>>> Not only did it have no space for witnesses but it had me notarizing both the grantor's *and* the grantee's signatures. Obviously, we all know this is incorrect. <<<
Sorry, Robert, but you are wrong in this case. It is not wrong or incorrect to have the grantee sign and have their signature notarized. It is not required that the grantee sign, but it doesn't make it wrong or incorrect to do so. I have notarized all parties signatures (grantor and grantee) on many deeds of conveyance.
I do recommend showing the capacity of each signer in the acknowledgment certificate. Similar to "John Doe, grantor, and Harry Smith, grantee". (In Florida, we are allowed to show representative capacity in our notarial certificates. Just in case you were wondering.)
Reply by kathy/ca on 5/25/10 10:52am Msg #338018
Robert, I dont know about FLA law but in CA, you are wrong!
"it had me notarizing both the grantor's *and* the grantee's signatures. Obviously, we all know this is incorrect". Obviously YOU are incorrect!
Reply by desktopfull on 5/25/10 11:37am Msg #338032
You can't charge $10.00 per signature on a document. In FL you are only allowed to charge $10.00 per document regardless of signatures.
Reply by PAW on 5/25/10 11:50am Msg #338034
Not quite. We cannot charge per signature, that is true. However, the statutes allow us to charge up to $10.00 per notarial act. So, if there are two certificates on one document (affixing your seal twice), then, imo, that's two notarial acts.
Reply by jba/fl on 5/25/10 9:35pm Msg #338249
That is how I interpret this as well.
I have had company that wanted seperate acks. for each signer - every time I use my stamp it is $10.00 - that is the "act."
Reply by desktopfull on 5/25/10 9:38pm Msg #338252
A few years ago, I was requested to notarize a QCD with 8 people on the deed with a separate acknowledgement for each person, there was a disagreement over the fees and we called the SOS's office for verification, I was told that the fee was $10 per document regardless of signatures or certificates attached.
Reply by Sylvia_FL on 5/25/10 10:09pm Msg #338258
Oh my! That's another case of the SOS office getting it wrong. Statutes clearly state:
(2)(a) The fee of a notary public may not exceed $10 for any one notarial act, except as provided in s. 117.045.
So, if two notarial acts on a document that is $20.
Reply by desktopfull on 5/25/10 10:18pm Msg #338259
Well, thanks to the SOS's office I had to accept $10.00 and I told them to lose my number.
Reply by PAW on 5/25/10 8:33am Msg #338000
First, Melissa, you were absolutely correct in declining to notarize an incomplete document. [FS ยง117.107(10)]
Second, since you have specific knowledge of the recording laws in the State of Florida, you would not be guilty of UPL stating that deeds require two witnesses. Specifically if the document is a DEED, it must also include the following:
* Grantor and grantees addresses * Name and address of who prepared the document per Florida Statute 689.01 * Legal description * Two witnesses must witness the signatures of the grantors. The signatures must show the printed name beneath each signature per Florida Statute 689.01
Without those required items, though the deed may record, it also may place a cloud on the title if and when the property is researched.
Why isn't this UPL? Because you are not offering legal advice nor a legal opinion. You are reciting the statutes for the benefit of the signers.
Reply by MelissaM_FL on 5/25/10 8:43am Msg #338002
Thank you, PAW!
I was fairly certain that I was correct in refusing the notarization, but a recent conversation with another local notary had me questioning myself. Her contention was that I should have notarized the document as presented, even if it was incorrect. Thank you for your insight!!
Reply by Sylvia_FL on 5/25/10 8:47am Msg #338003
You cannot notarize signatures on an incomplete document. So you were correct in refusing to notarize. I also see no problem in advising them that the document may not record without 2 witnesses.
Reply by Pat/IL on 5/25/10 9:13am Msg #338004
More importantly than refusing the notarization, I think your suggestion that he consult an attorney wa the right thing to do. I can't claim to be any kind of an expert on Florida law, but I doubt a newborn child is able to own real property outright. Or, the 9 year old, for that matter. So, besides the flaws that caused you to rightfully refuse, there is the probability that the deed would not produce its desired effect anyway.
In Illinois, there are alternative ways to accomplish your borrower's goal - the most common thaqt comes to mind is creating a trust for the benefit of the borrower and his brothers. The trustor gets to make the rules, and can also act as the trustee. The trust acquires title to0 the property and may even stay in effect upon the death of the original purchaser (your borrower) as long as it is properly constructed. I am sure there are similar estate planning tools available in Florida.
Reply by PAW on 5/25/10 9:30am Msg #338007
If you're interested
Title XL, Chapter 710 of the Florida Statutes deal specifically with the transfer of real property to minors. (A minor is anyone under the age of 21, in FL.)
http://tinyurl.com/32ghgpp
Reply by MelissaM_FL on 5/25/10 12:36pm Msg #338051
I admit I had visions
of the purchaser trying to get a construction loan to refurbish the house and the baby being asked to sign his consent to the loan! LOL
Reply by James Powell on 5/26/10 7:32am Msg #338280
Re: I admit I had visions
I had a case similar to this in Michigan where the deed had been properly executed and recorded from a mother to herself and minor child. The mother was surprised to find out that, in Michigan, she now had to go to Probate Court and be appointed as Guardian for her own child to execute the documents in his name!
I like Florida's statute better, forcing one to expressly deed to the custodian for the minor.
As for the incompleteness of the document, there is nothing wrong with having a printout that explains recording criteria and giving that to someone. A lot of county recording offices have such handouts available for the public. Giving such a document with the advice to seek legal counsel for guidance is the professional thing to do in this sort of case.
Reply by C. Rivera Chicago Notary Services on 5/25/10 11:12am Msg #338025
Sylvia, ur telling us that Robert did a no-no...oh my! n/m
Reply by Sylvia_FL on 5/25/10 11:17am Msg #338029
Re: Sylvia, ur telling us that Robert did a no-no...oh my!
Who? moi??? Contradict a self proclaimed expert? Never!
I believe others have said in this thread that Robert is wrong.
Reply by bagger on 5/25/10 12:09pm Msg #338039
Re: Sylvia, ur telling us that Robert did a no-no...oh my!
OK at the risk of dating myself here. Anybody else remember Professor Irwin Corey? I think Robert may be his reincarnation.
Reply by C. Rivera Chicago Notary Services on 5/25/10 12:18pm Msg #338043
omg...I REMEMBER and I'm not THAT old! n/m
Reply by Robert/FL on 5/25/10 3:00pm Msg #338118
LOL n/m
Reply by Sylvia_FL on 5/25/10 12:55pm Msg #338064
Re: Sylvia, ur telling us that Robert did a no-no...oh my!
"I think Robert may be his reincarnation"
There is a strong resemblence:)
Reply by bagger on 5/25/10 1:57pm Msg #338095
Thank you Sylvia
I remember that exact routine - almost. The only difference was the question - Why is the sky blue. Why was the same answer, and Is the sky blue? Of course it is you fool, just look up!
Reply by Roger_OH on 5/25/10 2:48pm Msg #338112
The Prof turns 96 soon...
www.irwincorey.org
Reply by Notarysigner on 5/25/10 2:29pm Msg #338104
thank you Sylvia n/m
Reply by jba/fl on 5/25/10 9:37pm Msg #338251
WATT? That's how a light bulb is rated! OMG - memories! n/m
Reply by MelissaM_FL on 5/25/10 12:34pm Msg #338049
Thank you, Ms. Sylvia!!
Reply by MW/VA on 5/25/10 9:30am Msg #338006
Kudos for being a knowledgeable notary & for exercising due dilligence. While the intentions may have been good, I wouldn't have notarized an incomplete document like that.
Reply by Julie/MI on 5/25/10 9:54am Msg #338010
bet they are recent to USa
Bet if he had younger sisters he would not be adding them to the property..funny how newbies to this country seem to buying up all the foreclosed properties with cash.
Maybe I'm wrong in your situation, but I would hate to be the title company involved having the youngins come to the closing if the uncles ever sells the property....
Reply by MelissaM_FL on 5/25/10 12:43pm Msg #338054
Re: bet they are recent to USa
You're probably right. I didn't post the ethnicity of the buyers before, but they are hispanic. Not that there is anything inherently wrong with that, just different traditions. I hope they did go to an attorney, rather than creating a title nightmare for later.
Reply by SharonMN on 5/25/10 1:28pm Msg #338076
In this case, the document was incomplete so you had an easy way out. However, whenever I get a request like this, I spell out what "notarization" is - similar to this:
"If I notarize this, all I am doing by signing and stamping is saying that I checked your ID and that you appear to be signing of your own free will and competent to sign. I am not certifying that this document is true, legal, or will do what you want it to do. For that you need to consult an attorney or other expert. Would you still like me to notarize for you?"
