North Carolina Corrects and Amends the Notary Public Act
by: Louis Danastorg
On June 18th, 2013 North Carolina’s General Assembly ratified corrections and amendments to the Notary Public Act. Within North Carolina notaries public facilitate the recording of security instruments affecting real property with the Registry of Deeds. Typically notaries public will perform signature acknowledgements, administer oaths and affirmations, and verify or prove signatures presented on security instruments. The amendments take effect for all notarial acts performed on or after July 1, 2013, and retroactively validate acts-having been duly recorded and accompanied by a seal or stamp-dating back to December 2005, as well as, most minor or typographical errors regardless of when the act was performed or recorded.
House Bill 322, Part 1: Notary Public Act
Section 1
Changes in the statutory language of the Notary Public Act indicate that G.S. 10B-5(b)(9) no longer requires as a qualification for a notarial commission that a person obtain the recommendation of an elected official.
Section 1.1: Powers and Limitations
If a notary is a signer, party to, or beneficiary of the record presented for notarization, he or she is barred from performing any notarial act. The disqualification does not apply to notaries that are employees of a party to the record due to employment status or stock ownership. This disqualification also does not apply when a notary is named in the record as:
- Trustee
- Drafter
- Person and address to receive recorded or registered documents
- Attorney of one of the parties to the record
Section 1.4: Enforcement and Penalties
Any violation by a notary, who is also an attorney-at-law, shall be reported to North Carolina State Bar and any such referral by the Secretary will serve as evidence of professional unfitness.
Section 1.5: Acts of Notaries Public in Certain Instances Validated
All documents containing acknowledgement errors reflecting an incorrect date of acknowledgment, verification or proof, oath or affirmation-shows the correct day and month but lacks or misstates the year-have been validated if performed before December 2005 and bear a notarial seal.
Section 1.6: Erroneous Commission Expiration Date Cured
Any incorrect date of a notary’s commission’s expiration will not affect the validity of the recorded document should the notary be in fact commissioned at the time of execution, regardless of when the act was performed.
Section 1.7: Technical Defects Cured
The following technical defects, and those of a similar nature and effect, will not affect the validity of a recorded document:
- Absence of legible name of notary
- Placement of seal near name of principal or the subscribing witness
- Minor typos
- Failure to state principals title or office
Section 1.10: Presumption of Regularity
All notarial acts recorded and compliant with the law as of December 2005 shall be validated regardless of when the notarial act was performed.
Section 1.11: Survivorship
When any or all joint tenants holding property in a joint tenancy with a right of survivorship convey deed of trust to the trustee to secure a loan, the joint tenants retain their rights of survivorship. Legal title to the property reverts back to the joint tenants in the shares corresponding to the time the deed of trust was executed upon satisfaction of the financial obligation.
Section 1.12: Notary Public of Sister State; Lack of Seal or Expiration Date of Commission
A certificate of a county or state official must accompany a certificate of proof or acknowledgment made by a notary public commissioned outside North Carolina if the instrument:
- Doesn’t show a seal
- Doesn’t provide evidence seal is not required
- Doesn’t indicate non-expiration of notary’s commission
A proof or acknowledgement that does not require a seal must include either a statement reflecting such or a reference to the statute that permits the seal’s omission. The registry of deeds may rely on this statement and not required to confirm its validity. If a record has otherwise complied with this subsection but bears no seal, the registry of deeds may not refuse to accept the instrument for recording.
Acceptance of the record without a seal establishes a rebuttable presumption that seal was not required. A court finding that a record lacked a valid seal will not affect the rights of those-having an otherwise enforceable interest in the real property-that record their interests in the real property prior to the finding.
Section 1.13: Subscribing Witness Incompetent when Grantee or Beneficiary
A subscribing witness holding dual-status as grantee or beneficiary to an instrument may not prove the execution of said instrument.
Section 1.15: Powers of Attorney
Recording is required for powers of attorney before any transfer of real property. An instrument of conveyance may be recorded before a power of attorney provided the attorney-in-fact was authorized at the time of conveyance. Recording the power of attorney after the instrument of conveyance will not invalidate the transaction, and the recording shall date back to the time of the instrument’s recording.
The power of attorney shall be registered where the principal is domiciled or the county where the property is located. If the principal is not a North Carolina resident, the power of attorney can be recorded anywhere in the State where the principal owns real property or has a significant business interest. If the property is within more than on county or outside the principal’s domicile, recording may occur in either of the counties, but the instrument must specifically refer back to the recording’s book, page and county. Failure to comply with this provision will constitute an infraction.
Section 1.16: Corrections in Recorded Instruments
Notification of typos and other minor errors on an instrument of conveyance may be recorded with an affidavit, but only to the extent that the corrective affidavit is inconsistent with the original instrument. There is no requirement to attach the affidavit to the original or a copy of the recorded instrument, or to include a copy of the instrument that identifies corrections.
If a notary public submits the corrective affidavit to correct a notarial certificate, already attached to the instrument, the notary must complete the corrective affidavit and may attach a new acknowledgment. A notary’s corrective affidavit will not affect the instrument’s priority, as the date and time will remain as originally recorded.
Section 1.27: Before US Army Officers and Other Service Members
All proofs or acknowledgements made by military personnel authorized by Congress are ratified, confirmed and validated, and do not require a seal provided instrument is valid in all other respects.
About the Author
Louis Danastorg, J.D., M.B.A. is Associate Counsel and Compliance Specialist at Bankers Advisory, Inc. He is a graduate of Vanderbilt University and earned his Juris Doctor and Masters of Business Administration from Suffolk University. He can be reached at Louis@bankersadvisory.com
Anna DeSimone founded Bankers Advisory in 1986 and is a nationally recognized authority in residential mortgage lending. She has received numerous industry awards and has authored more than 40 best practices guides and hundreds of articles.
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