I am sure everyone has heard of the words “notarize”, “notary”, “notaryo”, “notary public”, “notaryo publiko” in your daily grind at work or even in your personal dealings at home. We often see giant placards announcing notarial services available in unexpected places everywhere.
But we all know that most, if not all, of these “so-called” notaries public that offer notarial services in the streets or in any shaded corner with just a carry-on table, chair and typewriter, are fake. Sad but true. That is why I decided to write about it. It is important for us to understand what notarization really means and why we need to notarize our documents in the first place.
Here are ten good-to-know information about notarization:
1. Who is a Notary Public?
Under the 2004 Rules of Notarial Practice (“Rules”), a notary public must be a lawyer. Meaning, one must have (1) passed the bar exams, (2) taken oath and (3) signed the roll of attorneys. One must also be lawyer in good standing and must not have been convicted in the first instance of any crime involving moral turpitude. Again, only lawyers can be notaries public in the Philippines. This leads me to a question: Are those guys notarizing documents along Recto Ave., outside city halls, or under the MRT/LRT lawyers? (Nah! I don’t think so.) More often than not, they are just agents or representatives of a lawyer. The lawyer allows these guys to use his name and notarial commission, as well as sign on his behalf. Risky. Very risky. But still happening!
What do you do? Well, at the very least, check this list first and see if the notary public is a lawyer in the Philippines. If the name is there, then you can proceed and deal with the notary public (or whoever represents him or pretends as him! haha).
2. How does one become a Notary Public?
Getting a notarial commission is not an easy task. You have to be qualified first and foremost (refer to # 1). Beware! The documentary requirements for the application are not just a few. You need a lot of certifications and clearances from different offices. Once completed, you need to file a Petition for a Notarial Commission with the Executive Judge of the Regional Trial Court where you intend to render notarial services. After a summary hearing and if there is no opposition to the application, you will be issued a notarial commission valid for two (2) years, unless earlier revoked or in case you resign.
3. What are the purposes of notarization?
A notary public notarizes a document to prove that he has verified the personal appearance and the genuineness of the signatures of the signatories to the document. A notary public authenticates the document and verifies its due execution making the document admissible in evidence. Courts, administrative agencies and the public must be able to rely upon the acknowledgment executed by the notary public.
4. What are the powers of a Notary Public?
a) A notary public is authorized to perform these notarial acts:
ii) oaths and affirmations;
iii) signature witnessings;
iv) copy certifications; and
v) other acts authorized under the Rules.
b) A notary public is authorized to certify the affixing of a signature by a thumbmark or other mark on a document presented for notarization.
c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on a document.
5. What are the prohibited acts/disqualifications of a Notary Public?
a) A notary public cannot notarize outside his regular place of work or business (but there are exceptions to this rule). For example, if you are given a notarial commission for a certain jurisdiction as Quezon City, you cannot notarize in Muntinlupa City, subject to certain exceptions.
b) A notary public cannot notarize if the person involved as a signatory to the document is not present at the time of notarization and is not personally known to him or not identified through any competent evidence of identity (What is this? See # 6).
c) A notary public is disqualified to notarize if he is a party to the instrument that is to be notarized; if he will receive any commission, fee, advantage, right, cash, property or other consideration; or if he is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree.
If the notary public does not know us personally, we need to present valid IDs as a requirement for notarization. However, not all IDs are acceptable under the Rules.
To be considered valid, it must be a competent evidence of identity. This means that the ID you present to the notary public must be one issued by any Philippine government agency with your photo and signature.
The following are examples:
Senior’s citizen card
Alien certificate of registration card
If there is no valid ID available, the oath or affirmation of a third person who is personally known to the notary public and who personally knows the person; OR the oath or affirmation of two witnesses who each personally knows the person and shows to the notary public their IDs.
Here you will see the complete list of acceptable IDs under the Rules.
7. Is the presentation of cedula (community tax certificate) instead of the listed IDs above still accepted?
No, cedula is not one of the IDs enumerated by the Rules as competent evidence of identity. If you present your cedula, the notary public can ask for another valid ID from you.
8. Can secretaries/agents/representatives sign in behalf of the Notary Public?
No, they cannot since these persons are not notaries public. They can be held liable for “Usurpation of Authority” or “Estafa”, among others. Remember! Notarial acts can only be done by a notary public and these acts are not transferrable. So for those doing it without authority, watch out, watch out!!!
9. What contracts/documents need to be notarized?
In any contract, for as long as the elements of (1) consent, (2) subject and (3) cause are present, they are valid whatever form they are in.
But when the law requires that a contract be in a certain form for it to be valid, that requirement is absolute. Article 1358 of the Civil Code enumerates the following contracts that have to be set down in a public instrument (meaning, they must be notarized!):
a) Acts and contracts that create, transmit, modify or extinguish real rights over immovable property; sales of real property or interest therein;
Examples: Deed of Sale of Real Property/Motor Vehicle, Real Estate Mortgage, Chattel Mortgage
b) the cession, repudiation or renunciation of hereditary rights or those of conjugal partnership of gains;
Examples: Waiver of Rights, Donation, Deed of Assignment
c) the power to administer property or any other power which has for its object an act that would prejudice a third person.
Example: Special Power of Attorney
10. What is the effect of a faulty / defective notarization?
The document can be nullified and in turn, it will have no force and effect. It can also be very costly since you would need to hire a lawyer to defend you in case the situation turns against you.
So… those are the ten important things you have to know about notarization. Hope this information helps you in any way possible.
If you have any questions, you may comment below or send me an email at firstname.lastname@example.org. Until next time!
This is Attorney Mommy, at your service!