Notary Public License Law Study Notes

Notary Public License Law - New York (January 2023)

Introduction

  • Commissioning: Notaries public are commissioned by the Secretary of State.
  • Application Process: Applicants must submit an original application and a $60 fee
    • **Application Inclusions:
    • Oath of office (must be sworn and notarized)
    • Pass slip indicating that the notary public examination has been taken and passed
    • Exemptions: Attorneys admitted to practice in NYS do not need to pass the examination.
  • Commission Term: 4 years.
  • County Commissioning: Notaries are commissioned in their county of residence.
  • Record Keeping and Verification: The Secretary of State forwards the commission, the original oath of office, and the signature to the county clerk, who maintains records of the commission and signatures. Public can verify notary signatures at the county clerk’s office.
  • Signature Authentication: County clerks can authenticate notary signatures upon request, usually for documents intended for use outside of New York.
  • Certificate of Official Character: Notaries who regularly sign documents outside their residence can file a certificate of official character with other county clerks.

Out-of-State Residents

  • Attorneys: Attorneys residing out of state with an office in New York are considered residents of the county where their office is located.
  • Non-attorneys: Non-residents conducting business in NY may also become notaries by filing their oath and signature with the county clerk of the county where the business is located.

Sections Relevant to Notary Public License Law

  • Executive Law:
    • 130: Appointment of notaries.
    • 131: Appointment procedure, fees, and commissions.
    • 132: Certificates of official character.
    • 133: Certification of notarial signatures.
    • 135: Powers and duties of notaries, including attorneys.
    • 135-a: Acting without appointment and fraud in office.
    • 135-b: Advertising by notaries.
    • 135-c: Electronic notarization details.
    • 136: Notarial fees.
  • Real Property Law:
    • Contains various articles concerning acknowledgments and proofs for real estate transactions.
  • Public Officers Law: Outlines qualifications, fees, and misconduct of public officers.

Professional Conduct

  • Serious Violations: Taking acknowledgments/affidavits without the individual's presence is illegal.
  • Judicial Declarations: Law courts condemn the act of taking acknowledgments without the subject individual present. (Citations: Matter of Napolis; Matter of Gottheim)
  • Oath Administration: The oath must be taken in the presence of an authorized officer, with the affirmation being just as binding.
Misconduct and Removal
  • Notaries may be removed for:
    1. Giving legal advice or documents.
    2. Engaging in financial transactions directly related to legal advice.
    3. Executing acknowledgments of wills (not equivalent to an attestation clause).

Appointment and Qualifications

  • Eligibility: Applicants must be residents of New York or maintain a business office in the state.
  • Character Assessment: The Secretary of State must assess applicant’s character, education, and familiarity with notarial duties.
  • Reappointment Rules: The Secretary may waive qualifications for reappointments in specific circumstances, such as military service.
Specific Laws Governing Notaries
  • Executive Law Section 130:
    • The Secretary of State appoints notaries for a 4-year term.
    • Non-legal applicants must demonstrate good moral character and relevant educational background.
  • Executive Law Section 131:
    • Application includes oath and signature.
    • Fees: A non-refundable $60 fee is required upon application.
    • Identification: An ID card will be sent upon approval.

Notary Fees

  • Various fees established for notarial services:
    • Administering oaths: $2
    • Acknowledgments: $2 per person
    • Electronic notarial act fees as established by regulation.

Electronic Notarization

  • Authorization and Standards: Notaries can perform electronic acts using approved communication technology.
  • Identification methods required: Ensure compliance with regulations for cautiously verifying identities and maintaining secure, appropriate records for electronic notarizations.
Recordkeeping Requirements
  • Notaries must maintain clear documentation, including:
    1. Date and time of the notarial act.
    2. Identification type used.
    3. All procedures followed during the notarial process.

Definitions and General Terms

  • Acknowledgment: Declaration before an officer confirming authenticity of execution.
    • Required for preventing fraud and securing property titles.
  • Affidavit: Written statement, sworn before a notary.
  • Power of Attorney: Legal instrument granting another individual authority.
  • Protest: Official declaration by a notary regarding financial documents.

Important Considerations for Notaries

  • Must perform duties honestly and maintain clear boundaries regarding legal advice.
  • Recognizing disqualifications and ensuring proper procedures during notarial acts is critical.

Schedule of Fees (Summary)

  • Commission Fee: $60
  • Changes in Name/Address: $10
  • Duplicate Cards: $10
  • Certificates of Official Character: $1
  • Acknowledgments and Swearing Witness: $2 each