What is a notarized document?
What is a Notarized Document?
Many people have heard the term "notarized document," but are often not clear on precisely what this means. A notarized document is simply a document which has been notarized by a notary public, a legal practitioner who is authorized by the state to serve as an impartial witness in a legal transaction. Notarization of a document is purely a formality performed to ensure the authenticity of a document or establish facts such as the identity of the signer and the time and date of signing.
As an impartial third party, the notary public defects fraud attempts— either by refusing to notarize the document, or by disclosing the wrongdoing as a deterrent. Once a document is notarized , the notary therefore becomes a witness to the execution of the document.
Thanks mainly to the Uniform Law on Notarial Acts ("ULNA") adopted by the states, the powers afforded to notaries in many states today extend far beyond signing documents and storing them in a safe deposit box. Notary publics are now permitted to: administer oaths and affirmations, take verifications upon oath or affirmation (i.e., depositions), certify copies of recorded documents, and perform marriage counseling, among other things. Only the administration of oaths is not permitted by the ULNA.
Generally, the process of notarization involves the following steps: (1) signing of the document, (2) affixation of the notary seal and/or stamp, and (3) recording the notary facts in the notary journal.
The binding nature of a notarized document
The added value of notarization comes not from the formalities or guidelines governing the process, but in the finality of it. When a notarized document is produced in a court of law as evidence of an agreement, a claim, or a fact, it is considered to be a true and accurate reflection of the legal intentions of the relevant parties. In most instances, the information that a notarized document presents cannot be challenged – it is legally binding.
It is important to keep in mind however that the act of notarization does not make a document legally binding per se, but rather validates the document’s authenticity. It is the information that the document contains that holds its legal weight and is considered to be legally binding in and of itself. The key difference here is that the signed documents themselves are not necessarily legally binding, but rather the signatures and information contained within the document are what makes it legally binding. Whereas an agreement may be considered legally binding on behalf of a party if that party had every intention of signing the document, it is generally impossible for an individual to fully commit themselves to an agreement that they have never even seen. However, having the signed document in hand is the closest it gets to having a pure document of intention. In any dispute, it is clearly defined as binding due to it being notarized, and attaches certain legal force that cannot be easily dissuaded. Instead of having to waste the court’s time settling "she said, he said" type disputes, the fact that the document is notarized demonstrates that in this specific instance, an impartial and professional party witnessed this document being executed, and thus, greatly solidifies the veracity of the information contained within the document. Though not entirely fool-proof, in most cases the truth is representative of notarized documents when they are presented to the courts as admissible evidence.
Factors that determine binding nature
A number of factors influence the legal binding nature of a document. These factors include the intention of the parties, the capacity and consent of the parties, the inclusion of all necessary legal terms and the legality of the contents of the document. The presence of the intention to create a legally binding agreement is an important element in determining whether or not a document is legally binding. The intention to create a legally binding agreement can be expressed through words or conduct, but the courts will only accept such an agreement if the intention is clearly stated (and is not ambiguous or vague). If the parties verbally agree to enter into an agreement, but the written document is unsigned, such a document may not be sufficient. As with the intention to create a legally binding agreement, the ability of a party to understand the nature of the document and its legal consequences is important when contests arise over the validity of a notarized document. Almost any document can be witnessed by an official. However, the witness must be independent of the parties to the document and satisfy certain criteria. For example, in Ontario, a witness cannot be the lawyer or paralegal representing one of the parties to the document or an employee of one of the parties. If a party to a notarized document has not provide his or her free and independent consent to the terms of the document, it may not be enforceable against that party. A party’s consent to the agreement is present where the consent has not been revoked and the parties concerned have settled the matter between them. Consent is said to be free when the parties’ assent has not been caused by mistake, fraud, undue influence or duress. If a document is complete in itself but contains an error or omission, it may still be enforceable if this error or omission can be corrected without affecting the interests of the parties. Courts in Ontario have refused to allow a party to avoid payment of damages because the party failed to closely read a notarized document. Adequate consideration is the contract price or other compensation in the form of property, money, services or a combination thereof that is part of a legally binding contract. The adequacy of consideration does not affect the enforceability of a contract and courts generally do not review the terms of a contract. In Canada, in order for a notarized document to be enforceable, a document must not offend public policy or the law in general. In other words, an agreement cannot alter the law nor violate a statute. A contract that to any extent is against public interest is unenforceable.
Common myths about notarized documents
One of the significant myths about notarized documents is that the presence of a notary public makes the document legally binding. Though a notarized document does have advantages, it is not a blanket approval for a contract or other legal instrument, nor does it confer legal status on related elements of the transaction. The most important thing to understand is that the parties to the instrument entered into the contract willingly, fully understanding its terms. A notary’s job is to witness signature verification. He or she is not responsible for verifying the particulars or terms of the contract nor does notarization make it enforceable in a court of law.
Some notaries visit the parties to the contract and verify their signatures in person. However, many notarizations are conducted electronically or via fax without the risk of the contract being altered by any party.
In addition, some people confuse notarization with being drafted by a licensed attorney. Perhaps the contract was prepared by an attorney who had the notary public present to notarize it upon completion. This does not mean that the notarization makes it enforceable or valid. Rather, the notarization simply attests to the fact that the parties signed the agreement and are who they say they are.
The presence of a notary public does not make a contract substantive. Just because the document is notarized does not make it valid or enforceable in a court of law if certain criteria have not been met. Overall, being legally binding is not always sufficient to make a contract enforceable. Nor does notarization guarantee enforceability, because that is covered under the substantive law of contracts.
Some contracts have pre-conditions for execution by the parties, such as financing that must be obtained by a certain deadline or approvals from other authorities. If the party ends up not fulfilling those contingencies, the contract may not have been completed or may not have been binding as expected. When disputes arise over contracts, notarization does not change the legal principles involved, such as unconscionability and public policy. Pre-existing events and facts can override enforceability and validity of the contract.
The existence of a written agreement that confers legally-enforceable rights is important, but it is not sufficient on its own. It is critical that the elements of a contract involve a meeting of minds and that all necessary components are included for enforceability.
Examples where document must be notarized
In some cases, a notarized document is required by law. You may be in a good amount of trouble if you don’t get a document notarized when it is legally required. Depending on the circumstances, you may be facing criminal or civil penalties.
The following are a couple of examples of situations that require notarized documents: If someone is obtaining a mortgage for the purchase of residential real estate, the law requires the individual to sign a number of documents in the presence of a notary public. For example, federal law applicable to mortgage transactions requires a lender to obtain a borrower’s signature on Form 4506-T , Request for Copy of Tax Form/Wage and Income Statement. The lender must execute this form and obtain a signature from the borrower, "attested to by a notary."
If someone wants to file an affidavit, oath or affirmation in Texas, that person must have his or her signature notarized. In short, a notary must witness the affiant’s signature. Some government entities in Texas may confirm this requirement. If a person were to file an affidavit without a notary, the affidavit would be invalid, and the affiant could face a civil or criminal penalty.
Limitations of notarized documents
Limitations of Noatrized Documents
While notarized documents hold substantial evidentiary value, they are not failsafe guarantees of enforceability. Situations may arise where even notarized agreements face challenges. Here are a few scenarios when an additional legal safeguard is necessary:
Fraud or Coercion: Circumstances where the circumstances under which the document was notarized may involve allegations of fraud or undue influence by a party can make enforcement efforts difficult to proceed. If the notary was deceived or tricked into notarizing the document, it may be rendered unavailable. In some cases, a judge can dismiss a document even if a notary were to have authorized it, when there is credible evidence that the official did not perform his or her duty properly.
Address Errors: Any discrepancies with the name or identifiers of a party — for example the date of birth or other identifying numbers — may require correction through additional documentation to help ensure that the notarized document holds up. Notary clerical errors and misspellings are fairly common, but such mistakes can nevertheless complicate efforts to enforce a document.
Jurisdictional Issues: Not all jurisdictions allow for the recognition of notarization in the same manner. A document may be considered valid and enforceable in one state or country, but not in another. Including a choice of law provision in the document itself, or adding an apostille from a specific state or country may help to clarify these questions if they arise.
Challenges to Expert Opinions: In disputes over the meaning of a notarized document, individuals or entities may bring external expert opinions into the discussion, as well as bringing in other laws or rules to help determine the validity and enforceability of the document.
Final thoughts: weighing importance of notarization
In conclusion, while notarization of a document can provide a clear-cut confirmation of consent from each party, therefore leaving no ambiguity as to the authenticity of signatures and the integrity of its contents, in and of itself it does not guarantee the document’s legal validity. As such, it is highly advisable to weigh the document’s content and context in determining its legal relevance. Primarily, one must also assess the signing parties’ capacity to consent to the terms outlined therein. In other words, though the document is properly notarized, determining whether the individual signing possesses "legal" capacity to consent to said terms is crucial in validating the agreement. Furthermore, validity inter alia largely depends on whether the document was drafted, completed and signed in accordance with the relevant jurisdiction’s legal requirements and regulations , rather than simply determining whether the document is effectively notarized. Thus, although not having a notarized document could potentially put it at risk for contestation, signing and notarizing a document, in a vacuum, does not mean that a document will qualify as a legally enforceable agreement. The bottom line is, while the act of notarization still remains a significant part of the document-drafting process, and in many cases such notarization evinces the truthful signature of a party required in order to bind the document and the signatory, there are other paramount legal requirements that must also be carefully considered in order to effectively draft a legally binding and enforceable contract. This means that even though notarization provides certain procedural and substantive benefits, its effect is largely dependent on the circumstances surrounding the validity of your underlying document.