Notary public and the pandemic

So you just bought a house and now all documents must be notarized. What if you’re an OFW or someone who cannot appear in person?

So you just concluded the signing of a property transaction. The document has been signed by the parties. Article 1358 of the Civil Code, however, requires that acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable or real property, sale and lease of real property must appear in a public instrument.

Your salesperson, broker, agent, developer, or property manager will ask or facilitate the notarization of the instrument or document memorializing the transaction. Notarization however is not the mere stamping and signing by a notary public on the face of the document.

Notarization is any act of a notary public as empowered by the 2004 Rules on Notarial Practice or A.M. No. 02-8-13-SC. A “notary” or a “notary public” is a person commissioned by the Executive Judge of the territorial jurisdiction where he performs notarial acts. Only lawyers are allowed to be notaries in the Philippines. The commission to serve as a notary is granted for a period of two years, unless earlier revoked or the notary resigns. The commission is renewable.

No virus or pandemic should cause the paralysis of our way of life. The human species has the technology to adapt and survive in this situation.

The Supreme Court held in several cases that the notarization of a document carries considerable legal effect. Notarization of a private document converts such document into a public one, and renders it admissible in court without proof of its authenticity. Thus, notarization is not an empty routine; on the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.

A notary public is empowered to perform the following notarial acts: acknowledgments, oaths and affirmations, jurats, signature witnessing, copy certifications, and other acts allowed by the rules. The notary is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization. The notary is also authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document under certain circumstances.

A notary public is not allowed to perform a notarial act outside the regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in sites located within the territorial jurisdiction like public offices where oaths may be administered, public function areas of hotels, hospitals and other medical institutions where a party is confined for treatment and any place where the party is under detention. The person should personally appear before the notary at the time of notarization and should be personally known to the notary public or identified through competent evidence of identity. A lawyer who does any act that is prohibited by the rules may be disciplined by the Supreme Court, and may be suspended or disbarred.

Competent evidence of identity refers to identification issued by an official agency bearing the photograph and signature of the individual. Examples are driver’s licenses, passports, professionals’ ID, voter’s ID, and the like. An alternative is the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.

What if the parties are in different locations? Say, one is in the United States and the other is in the Philippines? Documents executed in other countries may be notarized in the country of origin. The Philippine Consulate, through its Consular Officers, can notarize documents signed by individuals to be used or presented in the Philippines. Personal appearance of the signatory or signatories is a requirement for consular notarization.

The Department of Foreign Affairs (DFA) also issues Authentication Certificates. Before, the DFA issued this with a “red ribbon.” On May 14, 2019, however, the Philippines became a signatory to the Hague Convention Abolishing the Requirement of Legalization for Public Documents or the “Apostille Convention.” Now, foreign public documents from Apostille-contracting countries are issued the Apostille as proof of authenticity of the document replacing the “red ribbon” streamlining the legalization process for member countries.

Notarization is done by a state official or lawyer. The essence is to validate the signatories of the document, preventing fraud. The Apostille, works as proof of authentication of a notarized document. Apostillization of a document works as a validation that the notarial stamp and signature is not fake.

Now how much does it cost to have a document notarized? The rules provide specific rates for specific documents to be notarized. These rates need to be reviewed, updated and standardized already. Notaries usually charge a fee of one percent to 1.5 percent of the property’s selling price for a Deed of Absolute Sale. Supposing the value of the property is P1,000,000, one percent of that amount is P10,000. That amount appears to be pretty steep considering that the notary will just perform notarial acts. One can even argue that it is unjust enrichment frowned upon under the Civil Code. It would seem justified that the notary be part of the negotiation process or at least the drafting or preparation of the Deed of Absolute Sale. That means that the notary applies legal knowledge and skill in the process, not just a mechanical act of stamping, signing and recording. The rules further allow travel fees and expenses on top of the notarial fees.

It is very interesting to note that some jurisdictions came out with new rules in response to the Coronavirus Disease (COVID-19) situation. In the United States, by virtue of the SECURE Notarization Act or “Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020,” every notary in the US is authorized to perform Remote Online Notarizations (RON). Each state was empowered to pass its own law in relation to electronic or digital notarization.

Section 4 of the SECURE Notarization Act provides that a notary public commissioned under the laws of a state may perform notarization that occurs in or affects interstate commerce for an individual not in his presence if they are able to communicate simultaneously by sight and sound through electronic device or process at the time of notarization. The notary public may identify the individual by other means other than personal knowledge. In fact, either directly or through an agent, may use an audio and visual recording of the performance of the notarization.

The requirement of personal appearance is deemed satisfied if the individual and the notary public are not in the physical presence of each other but can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization. Several states — New York, Texas, Missouri — modified and/or suspended laws relating to notarial acts. These states allowed notarial acts by audio-video technology under certain conditions.

In Germany, notarial certificates and other notarial attestations may be established electronically. They have a system allowing electronic signatures and electronic notarial documents providing for mechanisms for their issuance, verification, attestation and recording.

No virus or pandemic should cause the paralysis of our way of life. The human species has the technology to adapt and survive in this situation.

Thus the rules on notarial practice need to be responsive to the needs of the people considering the present conditions we are in due to COVID-19. Personal appearance before the notary may not satisfy social or physical distancing measures aimed at minimizing the spread of the virus. For this, the Supreme Court has to come up with new rules in for what will be the “new normal.”

The following may be considered:

1. A notary public shall verify the identity of a person signing a document at the time the signatures is taken by using two-way video and audio conferencing technology;

2. The video conference must allow for direct interaction between the person and the notary (no pre-recorded videos of the person signing);

3. The person must affirmatively represent that he or she is physically within the territorial jurisdiction of the notary public;

4. Electronic copies with electronic signatures may be used;

5. The notary public may verify the identity of the person by personal knowledge of the signing person, or by means of the person’s remote presentation of a government-issued identification or other accepted competent proof of identification;

6. Electronic copies of the notarized document may be transmitted and used;

7. Recording of the time, date, notarial act performed and means of communication used in the notarial registry.