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An acknowledgment is a declaration to a qualified public officer that the declarant executed the instrument in which the declarant's signature appears, and that the instrument is evidence of the declarant's act and deed.
The term also means the official certificate that such a declaration was made.
Comparing the Uniform Laws of Acknowledgments approved by the NCCUSL:
12 states adopted Uniform Acknowledgment(s) Act:
15 states adopted Uniform Recognition of Acknowledgments Act:
11 states adopted Uniform Law on Notarial Acts:
The Uniform Law on Notarial Acts (1982)
Definitions under section (1):
Since 1939, the Joint Editorial Board on Uniform State Property laws has promoted model laws to lend uniformity to the law of acknowledgments in the 50 states. Over 50 years later, the law of acknowledgments remains sate specific. Although 34 states have adopted some version of the several uniform acknowledgment acts, approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL), these 34 states have added state-specific variations to the uniform laws. Sixteen other states have adopted no uniform laws of acknowledgments, and adhere totally to state-specific acknowledgment statutes. State response to these uniform laws has defeated the NCCUSL goal to achieve uniformity in acknowledgment forms that are available to everyone under the statues of 50 states.
In 1968, the NCCUSL replaced the Uniform Acknowledgments Act with the Uniform Recognition of Acknowledgments Act, which provides that the form of an acknowledgment taken by any of the persons described in Section 1` of the Act shall be accepted in every adopting state, if the certificate contains the words "acknowledged before Me," or their substantial equivalent. The Act also sets forth "Statutory Short Forms of Acknowledgment."
The individual short form is as follows:
1. For an individual acting in his own right:
State of ________________________
County of ______________________
The foregoing instrument was acknowledged before me this _________ day of _________ 20 _______ by ________________________________.
Signature of person taking Acknowledgment _______________________________
Title or Rank __________________________________
Serial Number, if any ___________________________
2. Short form for a corporation:
State of __________________________
County of _________________________
The forgoing instrument was acknowledged before me this ________ day of ______ 20 ________ by _________________ (name of officer or agent, title of office or agent) of ________________________ (name of corporation acknowledging) a ____________________ (state or place of incorporation) corporation, ______________ on behalf of the corporation.
Signature of person taking Acknowledgment _______________________________
Title or Rank __________________________________
Serial Number, if any _________________________
Each of the approved Uniform Laws of Acknowledgments provide that a notarial act performed prior to the effective date of this Act is not affected by this Act. this Act provides an additional method of proving notarial acts. Nothing in this Act diminishes or invalidates the recognition accorded to notarial acts by other laws or regulations of this State.
Prior to 1968, the following form of acknowledgment was generally used, and is accepted today as an acknowledgment that meets statutory standards:
State of ____________________
County of __________________
On this _______ day of ______________ 19 ____, before me personally appeared ___________________, known to me be the person described in and who executed the foregoing instrument, and acknowledged that _______________ executed the same as ________________ free act and deed.
Signature of Notary Public
(Seal) My Commission expires on ______________
Acknowledgment of a Married Woman:
A jurat is a certificate executed by a qualified public officer before whom an oath is made. The jurat, certifies that the affiant swore, or affirmed, before the officer to the truth of the statements made, and signed the affidavit in the officer's presence.
The certificate of jurat serves two distinct purposes:
Form of a Jurat:
Subscribed and sworn to before me this ______ day of _________, 20 ____.
Signature of Notary Public
(Seal)My Commission expires on _______________
An attestation is the act of witnessing a person's signing of an instrument by a subscribing witness. The witness signs at the end of the attestation, in which the witness certifies that the instrument was executed in the witness's presence.
Statutes generally provide for the attestation of various instruments, either by a public officer having custody of the seal of office or by an officer of a private corporation, in order to identify as valid the signature of another corporate officer to the instrument in question.
Form of attestation in a corporation instrument:
ABC, a ______ corporation
It is generally accepted that an acknowledgment is not an essential part of a deed or other instrument, and that, as between the parties and persons having actual notice of the document an acknowledgment is not essential to the validity of the deed or instrument.
However, in a few states, an unacknowledged deed is not valid, and in others, the absence of an acknowledgment may, in certain circumstances, nullify the instrument (e.g., conveyance of homestead, conveyance by a married woman).
An instrument must be acknowledged to be filed in the public records; when filed, the world is placed on notice of the contents of the instrument. Local title insurance standards, court decisions, or statutes may provide that older documents without acknowledgments shall be included in the public records. With this exception, the Company requires the proper acknowledgment of all legal instruments upon which Stewart Title must rely to insure title.
In general, every private writing except holographic wills and testaments may be acknowledged.
Instruments may be acknowledged before a notary public or some other officer designated by statute.
Adopted in 12 states, The Uniform Acknowledgment Act , Section 2 provides that within the state, the following persons have authority to perform notarial acts, including acknowledgments:
Under Section 3 of the Uniform Law on Notarial Acts (1982), adopted in 11 states, the following person are qualified to take acknowledgments within the state:
Sec. 3 (b) Notarial acts performed within this State under federal authority as provided in section 5 have the same effect as if performed by a notarial officer of this State.
Sec. 3 (c) The signature and title of a person performing a notarial act are prima facie evidence that the signature is genuine and that the person holds the signature and title.
Sec. 5 (c) Notarial Acts Under Federal Authority. The signature and indicated title of an officer listed in subsection (a) (1) (2) or (3) being (1) a judge, clerk, or deputy clerk of a court; (2) a commissioned officer on active duty in the military service of the United States; (3) an officer of the foreign service or consular officer of the United States; .... conclusively establish the authority of a holder of that title to perform a notarial act.
If an acknowledgment is taken within the United States, including a territory or district of the United States, no authentication of the official character or the officer taking the acknowledgment is required. The presumption is that the acknowledger in fact is a person authorized by the acknowledgment law of the jurisdiction for purposes of recording documents, notice to creditors (and the world) and offering the document into evidence.
Any notary public or officer having any financial interest in the transaction is not qualified to take the acknowledgment and any acknowledgment so taken is void.
The venue of the certificate of acknowledgment is the state, territory or district and county or place or geographical subdivision where the acknowledgment is taken:
"State of __________ "
"County of __________ "
Acknowledgment Statutes require that the venue be stated in the certificate to show that the acknowledgment was taken within the physical area in which the notary public or officer is empowered to operate.
The contents of the certificate of acknowledgment are regulated by state law, local practices, the Uniform Recognition of Acknowledgments Act, the Uniform Acknowledgment Act, or the Uniform Law on Notarial Acts (in those states where adopted).
The following are the usual or customary contents of a certificate of acknowledgment:
Certificates of acknowledgment are defective either because they violate specific state law or because they are decreed defective by a court of law. A notarial act such as an acknowledgment may be defective because the notary's commission has expired, or the notary is disqualified under the statute, because he has an interest in the transaction.
In most states, a valid acknowledgment is essential for proper recording; that is, if the acknowledgment is defective, the instrument, although recorded in the public records may have the effect of an unrecorded instrument.
A notary public or officer cannot amend, modify, or correct the certificate of acknowledgment after it has been delivered. A new acknowledgment is necessary to entitle the instrument to be recorded or re-recorded. This can be easily done if the rights of third parties are not prejudiced.
Several states have specific statutes dealing with curing or validating defective acknowledgments. Among the statutory variations are the following examples:
A foreign acknowledgment is an acknowledgment taken outside the state where the subject land lies. This type of acknowledgment is valid as long as it conforms to the laws of the state where the acknowledgment is taken, and its acceptance is authorized by the laws of the state where the land lies.
In some states, it is required, either by custom or by law, that every acknowledgment taken outside the state has attached thereto a certificate by a court clerk to the effect that the officer taking the acknowledgment was authorized by law to do so. This is known as a "certificate of authenticity" or a "certificate of magistracy". If the certificate goes on to recite that the acknowledgment is in due form, it is known as a "certificate of authenticity and conformity", or "certificate of magistracy and conformity".
A. Acknowledgments taken within the United States (including a U.S. territory or district
1. No Requirement of Authentication of Acknowledgments taken outside the state, but within the United States:
If an acknowledgment is taken within the United States, including a territory or district of the United States, no authentication of the official character or the officer taking the acknowledgment is required. The presumption is that the acknowledger in fact is a person authorized by the acknowledgment law of the jurisdiction for purposes of recording documents, notice to creditors (and the world) and offering the document into evidence. Uniform Law on Notarial Acts, Section 4; Uniform Recognition of Acknowledgments Act, Section 1.
3. Qualifications to perform Notarial Acts outside the state but within the U.S., its districts, and territories and insular possessions of the US
Judge of any federal court; Clerk or Deputy Clerk of any federal court; Clerk or Deputy Clerk of any court of record of any State or other jurisdiction; a Notary Public; a Commissioner of Deeds; any person authorized by the laws of such other jurisdiction to take acknowledgments.
B. Acknowledgments Taken Outside the United States - Persons Qualified to Take
The 1942 Uniform Acknowledgment Act, adopted in 12 states, names the following persons as officials authorized to take acknowledgments qualified for acceptance in the adopting states:
An Ambassador, Minister, Charge'd' Affaires, Counselor to or Secretary of a Legation, Consul General, Consul, Vice-Consul, Commercial Attache or Consular Agent of the United States accredited to the country where the acknowledgment is made (2) a notary public of the country where the acknowledgment is made; (3) A Judge or Clerk of the court of record of the county where the acknowledgment is made."
The Uniform Recognition of Acknowledgments Act, approved 1982, and adopted in 15 states, provides that the following persons are officials authorized to take acknowledgments in foreign countries that qualify for acceptance in the adopting states:
E-Sign, 15 U.S.C. 7001 (g)
The federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq. to 7021 (hereafter, the "E-Sign Act") June 30, 2000 is based on the Uniform Electronic Transfers Act (UETA), developed by the NCCUSL in 1999, and adopted with variations by 31 states. Integral to E-Sign is the removal of state law restrictions on the parties to choose to use an electronic format for the creation, formation and delivery of contracts and other documents that state or foreign law currently requires to be signed, acknowledged, or verified in nonelectronic form. E-Sign clearly provides that electronic signatures, records and contracts shall receive equal treatment under the law as those in written form. Like E-Sign, UETA removes the requirement of the pen and ink medium for the effectiveness of a contract, record or signature. Like E-Sign, UETA broadly defines the term "electronic" to assure that UETA (Sec. 8(a) and 12(a)) requires accuracy in electronic methods to store and reproduce the information. Like E-Sign, UETA (Sec. 14) confirms that computers and other machines may function as the electronic agent of the parties to a transaction (E-Sign, 15 U.S.C. 7001(h)).
E-Sign (Sec. 7001(i); Sec. 7006 (13)(b) states that the Act specifically applies to (1) real property transactions, (including a loan secured by real property); and (2) the Business of Insurance, including title insurance. E-Sign and UETA define a transaction to include a sale, lease, exchange, or other disposition of any interest in real property, or any combination thereof. (Sec. 106 (13)(b)). Under E-Sign, electronic signatures is broadly defined as electronic "records" which simply means a contract or other record which is created, generated, sent, communicated, received, or stored by electronic means. E-Sign and UETA require governmental agencies to accept electronic records other than contracts to which the governmental agency is a party. State governmental agencies are in the process of establishing new filing standards to include electronic standards.
E-Sign allows the validity and enforceability of electronic notarial acts under the following provision:
"If a statute, regulation, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulations, or rule of law, is attached to or logically associated with the signature or record."
Effective October 1, 2000, the Electronic Records in Global and National Commerce Act, 15 U.S.C. 7001-7021 (hereinafter "E-Sign") repeals state law requirements for written instruments affecting interstate or foreign transactions, if the parties consent to an electronic agreement.
E-sign and its state counterpart UETA do not require any person to use or to accept electronic records or signatures, and E-Sign defines a person to mean an "individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity". E-sign and UETA differ in the standard applied to determine a party's consent to conducting a transaction in the electronic format. UETA (sec. 9) provides that the act of a person is required to attribute and electronic signature to that person. Effective consumer consent requires consumer demonstration based on adequate disclosures by lenders, for example.
E-sign requires a clear and conspicuous notice to the consumer advising the consumer of the choices: (1) to have the record provided or made available on paper or in nonelectronic form; and (2) the right of the consumer to withdraw consent to have the record provided in electronic form; and (3) the conditions, consequences, or fees in the event of such withdrawal.
The consumer's consent may take the form of typing OK on an e-mail and clicking the mouse on "send", thereby dispensing with state law requirements, relating to notary seals, witnesses, a formal written document, and acknowledgments.
Whether a party has provided a signature in an electronic format is a question of fact to be addressed in accordance with existing substantive law. UETA (sec. 9). The UETA simply permits a signature to be furnished in an electronic format. An electronic signature may be provided, for example, as part of a click through process where a party designates its agreement. The critical element is whether the electronic symbol or process evidences an intention to be legally bound. Like E-sign, UETA provides that to the extent the law requires that a signature be notarized, acknowledged or verified, the requirement is satisfied if the electronic signature of the person performing that act is attached to or "logically associated" with the signature. See: E-sign, 15 USC 7001 (g); UETA, (Sec. 11). The UETA does not remove any statutory requirement that a notary appear in the same room where a document is being executed and transferred electronically. It merely permits the signature of the notary to be obtained in an electronic format.
A. Full or Partial Consent to Conduct the Transaction Electronically/Effect of Withdrawal of Consent:
Parties to the transaction may elect to proceed as between themselves, electronically, but elect to utilize the traditional paper filing for recording purposes. Parties may decide to send traditional paper and pen notice letters to tenants and vendors, instead of furnishing electronic documents that are ancillary to the transaction to third-parties. Parties may question the security of electronic procedures for confidentiality and authentication purposes. Any withdrawal of consent to proceed with the transaction in an electronic format is not retroactive, but has strictly "prospective" effect (i.e. only affects conduct of future actions in the parties' transaction).
E-sign expressly disqualifies oral communications or recordings (thereof) to be electronic records.
E-sign does not apply to the execution of wills, codicils ad testamentary trusts. E-sign, 15 U.S.C. 7003(a)(1). Also, E-sign does not apply to records or contracts subject to laws pertaining to adoption, divorce or other family law matters. E-sign, 15 U.S.C. 7003(a)(2).
E-sign includes transactions arising under a few sections of the Uniform Commercial Code ("UCC"), including waive or renunciation of claim or right after breach (UCC, sec. 1-107), Statute of Frauds (UCC, sec. 2-206), UCC, Article 2 (Sales) and UCC, Article 2A (Leases), but excludes all other sections of the UCC. E-sign, 15 U.S.C. 7003 (a)(3); (b)(1).
E-sign specifically excludes application to various notices, including notices of the cancellation or termination of utility services. (E-sign, Sec. 7003(b)(2)(A).
E-sign requires notice to the consumer of any fee charges that might be applicable for paper copies; and notice if a change in the hardware of software requirements needed to access records creates a material risk that they would not be able to access records. Any notices required by law to be delivered to consumers, such as notices of default, acceleration, foreclosure and eviction notices related to a primary residence of an individual, are excluded. E-sign, 15 U.S.C. 7003(b)(2)(B).
E-sign also excludes documents required to accompany the transportation or handling of hazardous materials. E-sign, 15 U.S.C. 7003(b)(3).
Congress may eliminate these exceptions after October 1, 2004, after review of published findings by a federal agency based on a study, assigned by E-sign to the Secretary of Commerce, acting through the Assistant Secretary for Communications and information. The Study is an evaluation of the threat to consumer protection if these exceptions are removed and E-sign applies to wills, testamentary trusts, adoption, divorce, utility notices, and the majority of transactions conducted under the UCC. The issue is whether material risk of harm results to consumers if excluded transactions become transactions included under the law of E-sign.
Under E-sign, state governmental agencies must allow electronic filing of public records and may not require paper filing; but if parties choose to do a "paper and pen" filing under applicable state law, E-sign allows it. E-sign and UETA provide that any statutory requirement to notarize, verify, acknowledge, or affix an oath to a document is satisfied if all statutory required information is presented in electronic form, and the signature or acknowledgment or oath is logically associated with the electronically transmitted document.
In interstate and foreign transactions, E-sign pre-empts all conflicting state laws relating to electronic real property transactions. The UETA is compatible with E-sign. If a state has enacted UETA and extended its application to real property transactions, then E-sign defers to UETA. The same is true if the state enacts any electronic transaction law that is not in conflict with E-sign and is technology neutral. E-sign specifically allows state agencies to adopt technology neutral, state-specific standards for electronic transactions. E-sign may be pre-empted by any newly enacted state law affecting electronic transactions, if (1) that law is consistent with E-sign and (2) the state law is technology neutral.
Some states, such as Kentucky adopted UETA, and excluded real estate from its aegis. In these states, E-sign pre-empts state law with respect to interstate electronic real property transactions. E-sign defers to state substantive law to determine questions of agency, authority, contract formation, and forgery.
The Wyoming Legislature approved UETA on February 16, 2001 (2001 Wy. EA 25, effective July 1, 2001, to be cited as W.S. 40-21-101 through 40-21-119 Chapter 21 UNIFORM ELECTRONIC TRANSACTIONS ACT). The Wyoming Legislature will review a study and report by the Joint Judiciary committee to determine which areas of Wyoming law are impacted by UETA to enable fact-based amendment of UETA in 2002. Wy. UETA, Sec 40-21-111. The Notarization and Acknowledgment section of Wyoming's UETA provides that an electronic signature satisfies any law requiring that a signature or record must be acknowledged, notarized, or verified under oath. The Ohio Legislature enacted UETA (Revised Ohio Code, sections 1306.01 to 1306.23, 1999). The Virginia UETA provides that private parties or the public body shall determine the types of electronic signatures and authentication criteria. In Virginia, private parties have a nonwaivable right to refuse to conduct other transactions by electronic means; and each party must agree to cast the agreement in electronic form. The Virginia 2001 General Assembly enacted the Computer Information Transactions Act ("UCITA", effective July 1, 2001) that is specifically excluded form Virginia's UETA. UCITA relates to the licensing of computer information and provides protection for the licensor within the state contract law; the licensor retains the title to the computer information, whether the transfer is by CD-ROM, disk or online.
44 states have adopted some type of electronic signature statues, but no two states have adopted identical legislation. The result is a general hodgepodge of inconsistent legislation regulating electronic signatures and documents. The E-Sign Act pre-empts state laws to provide for the validity of interstate contracts conducted with the consent of the parties by electronic means using electronic signatures and "records".
In addition to state laws setting out detailed electronic transactions standards, the American Land Title Association (ALTA) is participating in the Mortgage Industry Standards Maintenance Organization (MISMO), a group endeavor to set common electronic standards to allow title companies and agents, lenders, and county recorders, to communicate mortgage information in a standardized XML manner. The United States Department of Commerce has adopted the Belgian Algorithm as the new U.S. encryption standard, which is an internationally accepted encryption method, that many in the private sector will adopt. See www.protonworld.com.
The Joint Editorial Board on Uniform State Property Laws allowed UETA to include bracketed language authorizing state regulatory agencies to assert local control of standards for electronic filing standards and traditional filing standards.