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Understanding the Role of a Notary

person A.J. Johnson today 02/29/2020

In the affordable housing industry, verification of income and other eligibility elements is a common requirement. In most cases, third party verification is required, meaning that the provider of the income provides a verification of the income. While such verifications are usually clear cut (e.g., pay stubs for employment purposes), there are times when we must rely on verification from a source with which we may not be familiar, such as an ex-spouse, a parent, a friend, etc.). In these cases, in addition to verifying the income, managers are also required to verify the identity of the person providing the verification. This is usually done through the use of a "Notary Public," or Notary. There are managers who think that when a Notary notarizes a document, the Notary is attesting to the truthfulness of the statements on the document; this is not the case. This article will outline basic notarial duties and will assist affordable housing managers in an understanding of exactly what notaries do (and don’t do).

What is a Notary Public?

A Notary Public is an official of integrity appointed by state government - typically by the Secretary of State - to serve the public as an impartial witness in performing a variety of official fraud-deterrent acts related to the signing of important documents. These official acts are called notarizations, or notarial acts. Notaries are publicly commissioned as "ministerial" officials, meaning that they are expected to follow written rules without the exercise of significant personal discretion, as would otherwise be the case with a "judicial" official, such as a judge.

What does a Notary Do?

A Notary’s duty is to screen the signers of important documents for their true identity, their willingness to sign without duress or intimidation, and their awareness of the contents of the document or transaction. Some notarizations also require the Notary to put the signer under an oath, declaring under penalty of perjury that the information contained in a document is true and correct. Property deeds, wills and power of attorney are examples of documents that commonly require a Notary. In the context of affordable housing, commonly notarized documents include recurring gift letters and child support verifications.

Impartiality is the foundation of a Notary’s public trust. They are duty-bound not to act in situations where they have a personal interest. For this reason, it is recommended that property managers who are Notaries never notarize income verifications or other eligibility related documents for the property they manage.

Why are Notaries and Notarizations Necessary?

Through the process of notarization, Notaries deter fraud and establish that the signer knows what document they are signing, and that they are signing willingly.

How Does a Notary Identify a Signer?

Generally, a Notary will ask to see a current ID that has a photo, physical description and signature. Acceptable IDs usually include a driver’s license or passport, but could also include a U.S. Military ID, State, county and local government IDs, permanent resident cards issued by the U.S. Citizenship and Immigration Services, and driver’s licenses issued in Mexico or Canada.

What a Notary is Not

Unlike Notaries in foreign countries, a U.S. Notary Public is not an attorney, judge, or high-ranking official. Notaries cannot provide legal advice or make a legal pronouncement.

Basic Notarial Duties

All states allow Notaries to perform oaths/affirmations and acknowledgments,  but other duties vary by state.

  • Acknowledgment: Some document transactions require that the signer make a formal declaration before a Notary, thereby "acknowledging" execution (signing) of the document. In these cases, the signer verbally acknowledges that:
    • The signer understands the contents and purposes of the document;
    • The signature is his/her own; and
    • The document was signed willingly (no coercion).

Documents typically requiring an acknowledgement are contracts, deeds, agreements, powers of attorney, etc. These documents contain terms to which the signer is agreeing.

Documents requiring acknowledgement can be signed earlier than or at the time of notarization. Either way, the signature must clearly be an original one, stroked directly onto the paper with "wet" ink (ballpoint, rollerball, etc.). The reason the document signature does not have to be witnessed by the Notary is that the person is acknowledging under oath that they signed the document.

  • Oath or Affirmation: Other document transactions require that the signer swear an oath or affirm to a Notary, under penalty of perjury, that the contents of a document are true. Oaths and affirmations differ but have the same legal effect. When taking an "oath," a person swears a pledge and invokes a Supreme Being (e.g., God). Persons who do not wish to invoke a Supreme Being may make an affirmation.
    • Documents typically requiring an oath include written affidavits and applications - documents for which the signer/affiant has supplied a set of facts (e.g., how much money the give a household each month).
    • Documents requiring an oath or affirmation must be signed in the presence of a Notary. This is the type of notarization that generally should be required for verifying documents at an affordable housing complex. If a document presented for an oath/affirmation has already been signed, the Notary must require the signer to sign the document again - in the Notary’s presence.
  • Signature Witnessing: Sometimes a Notary is asked simply to witness an individual’s signature. This requires neither an acknowledgement nor an oath/affirmation. There is no verbal ceremony for this notarial act, and the signer is not taking an oath that the information on the document is true. Not all states allow Notaries to simply "witness" signatures. For example, Georgia and Kansas prohibit Notaries from also acting as document witnesses, but Colorado, Delaware, and Pennsylvania permit it. It is the responsibility of a Notary to understand what is permitted under their state law.

While it is certainly not necessary for affordable housing managers to fully understand the laws relating to Notaries, managers do need to understand what a Notary does. Whether to require an oath/affirmation or just the witnessing of a signature will depend on circumstances. If we are only seeking to ensure that the person signing a document is legitimate, witnessing of the signature is adequate. But, if the veracity of a statement is important, a document should be notarized with an oath or affirmation.

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