• psst … I’m a Realtor! Thanks for stopping by my website. I would love to help you find your dream home and community in the Hampton Roads or Williamsburg area or to sell your existing home. This website is authored by local resident and REALTOR, John Womeldorf. John is known around town as Mr. Williamsburg, for both his extensive knowledge of Hampton Roads and the historic triangle, and his expertise in the local real estate market. His websites, WilliamsburgsRealEstate.com and Mr Williamsburg.com were created as a resource for folks who are exploring a move to Williamsburg, VA , Hampton Roads VA and the surrounding areas of the Virginia Peninsula. On his website you can search homes for sale , foreclosures, 55+ active adult communities, condos and town homes , land and commercial property for sale in Williamsburg, Yorktown, New Kent, Poquoson, and Gloucester, VA as well as surrounding markets of Carrolton, Chesapeake,Gloucester, Hampton, Isle of Wight, Portsmouth Mathews, Newport News Norfolk, Poquoson, Smithfield, , Suffolk, Surry, Va Beach, Yorktown and York County Virginia You can reach John by email John@MrWilliamsburg.com or phone @ 757-254-813

Hampton Roads Real Estate Legal Issues -I Swear, Agents as Notaries

 

 Legal Corner

I Swear, Agents as Notaries

Your man on the legal corner is quite concerned and has been for some time that agents who are also

notaries are not paying attention to the requirements imposed by that office.

 

A notary acts as an official, unbiased witness to the identity and signature of the person who

comes before the notary for a specific purpose. The person may be taking an oath, giving oral

or written testimony or signing or acknowledging his or her signature on a legal document. In

each case, the notary attests that certain formalities have been observed. The key function is to

be certain that the person appearing before the notary is who that person claims to be. A notary

who fails to perform notarial acts in accordance with the law may be sued for damages caused

by their official misconduct or prosecuted criminally. The employer of a notary may also be

liable for the notary’s misconduct under certain conditions.

The most common mistake I think agents make when acting as a notary is to not require the act

be done in their presence. A notary must have the person sign or acknowledge a pre existing

signature in the notary’s presence. That bears not just underlining but repeating: the act must

be done in the notary’s presence. It is not permissible for you to notarize a signature that was

not signed before you even if you are super ‐duper‐absolutely‐positively‐cross‐your‐heart sure

(the highest legal standard there is, of course) the person you think signed actually signed. So,

for example, it is not appropriate for you to notarize a client’s signature that was signed in

California but not notarized there even if the client tells you over the phone that the signature is

genuine. There may soon come a day when “in one’s presence” will incorporate video

conferencing or Internet cameras, but for now, at least in Virginia, they do not.

 

Another common mistake is that agent/notaries fail to require identification of someone who is

not personally known to them. You may not take a person’s word that they are who they say

they are, and you may not take a third party’s word that someone is who he or she says they

are. That is simply not appropriate. Additionally, if a document or acknowledgement calls for

the person to be under oath (uses the words affidavit or oath or sworn and subscribed) then you

must swear the person in. Frankly, my experience has been that most notaries, not just agent

notaries, frequently ignore this requirement. I realize that it can be embarrassing to ask

someone to raise his or her right hand and swear to tell the truth, etc. but you must do so.

 

Lastly, to resolve one common misconception, Virginia law does not require a notary to own a

seal or use a seal on any document although lenders frequently want them.

Legal Corner

©

Brian D. Lytle, Esq., Lytle Law, P.C. www.lytlelaw.com  Reprinted with permission of the author. This

article was originally published in the Realtor Update , a publication of the Virginia Peninsula Association

of Realtors ®

The law may have changed since this article was written and published so caution is

advised.

Please feel free to email the author at

bdlytle@lytlelaw.com

 

if you have any questions about this article or have a topic to suggest for a future article.

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