35
Notarial Law Viola,ons MADRID, Melben Rey | MUPAS, Jessica Lyn 1
Notarial Law Viola,ons MADRID, Melben Rey | MUPAS, Jessica Lyn
1
Purpose of Notarial Law
1. To promote, serve and protect public interest
2. To simplify, clarify and modernize the rules governing notaries public
3. To foster ethical conduct among notaries public Sec. 2, Rule I
2
Notary Public
• A notary public is an individual authorized by state or local government to officially witness signatures on legal documents, collect sworn statements and administer oaths.
3
Qualifica,ons
1. must be a ci,zen of the Philippines; 2. must be over twenty-‐one (21) years of age; 3. must be a resident in the Philippines for at least one (1) year and
maintains a regular place of work or business in the city or province where the commission is to be issued;
4. must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and
5. must not have been convicted in the first instance of any crime involving moral turpitude.
Sec. 1, Rule III, 2004 Rules on Notarial Prac8ce
4
Addi,onal MaYers
1. Payment of Applica,on Fee 2. Summary hearing on the pe,,on 3. No,ce of summary hearing 4. Filing of Opposi,on, if any.
5
Commission Granted
• The Execu,ve Judge shall issue: 1. Notarial Commission 2. Cer,ficate of Authoriza,on to Purchase a Notarial Seal
Sec 4, Rule III
6
Notariza,on
• Converts a private document into a public one • Renders the document admissible in court without further
proof of its authen,city Effect if acknowledged before a person who is not a notary public • The fact that the alleged deed of sale was signed before an
unauthorized party who had no appointment as Notary Public converted the document into a mere private instrument (BarreEo vs. Cabreza, 33 Phil 112, 3 January 1916).
7
Notaries Public ex Officio
• Notariza,on of documents connected only with the exercise of their official func,ons and du,es
1. MTC and MCTC Judges – When may act as regular notary public? a) all notarial fees charged be for the account of the Government and
turned over to the municipal treasurer (Lapena vs. Marcos, AM No. 1969-‐MJ, 29 June 1982)
b) cer,fica,on be made in notarized documents aYes,ng to the lack of any lawyer or notary public in such municipality or circuit (Quinones vs. Lopez, A.M. No. MTJ-‐02-‐1428, 9 April 2003)
2. Clerk of Court
8
Notarial Seal
• It shall be of metal, circular in shape, two inches in diameter, and shall have the name of the city or province and the word “Philippines” and his own name on the margin and the roll of aYorney's number on the face thereof, with the words "notary public" across the center.
9
Notarial Seal
• Effect of absence of notarial seal – Some courts have construed that the placing of notarial seal is simply
directory rather than mandatory, and that the inten,on of the legislature in prescribing such requirement is for the purpose of uniformity but did not intend to avoid the instrument without the par,cular impression of the seal. It is merely considered as a formal defect.
– For purpose of registra,on, however, the Register of Deeds will not register a document that lacks a notarial seal.
• When not necessary – Authen,ca,on of any paper, document, or record signed by a jus,ce of
the peace or emana,ng from his office except when he acts as notary public ex officio (Sec 218, Revised Administra8ve Code).
10
Jurisdic,on & Term
• A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdic,on of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court.
• The act of notarizing documents outside one’s area of commission xxx partakes of malprac,ce of law and falsifica,on (Laquindanum vs. Quintana, A.C No. 7036, 29 June 2009).
11
Powers & Du,es
1. Acknowledgments 2. Affirma,ons or Oaths 3. Jurats 4. Signature Witnessings 5. Copy Cer,fica,ons 6. Any Other Act Authorized by the Rules
12
Powers & Du,es
1. Acknowledgment – an act in which an individual on a single occasion: i. appears in person before the notary public and presents an integrally
complete instrument or document; ii. is aYested to be personally known to the notary public or iden,fied
by the notary public through competent evidence of iden,ty as defined by these Rules; and
iii. represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a par,cular representa,ve capacity, that he has the authority to sign in that capacity (Sec. 1, Rule III).
13
Powers & Du,es
2. “Affirma,on” or “Oath” – to an act in which an individual on a single occasion: i. appears in person before the notary public; ii. is personally known to the notary public or iden,fied by the notary
public through competent evidence of iden,ty as defined by these Rules; and
iii. avows under penalty of law to the whole truth of the contents of the instrument or document (Sec. 2, Rule II).
14
Powers & Du,es
3. Jurat – an act in which an individual on a single occasion: i. appears in person before the notary public and presents an
instrument or document; ii. is personally known to the notary public or iden,fied by the notary
public through competent evidence of iden,ty as defined by these Rules;
iii. signs the instrument or document in the presence of the notary; and iv. takes an oath or affirma,on before the notary public as to such
instrument or document.
15
Acknowledgment vs. Jurat
An acknowledgement is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed; while jurat is that part of an affidavit where the officer cer,fies that the same was sworn before him (Tigno vs. Aquino, G.R. No. 129416, 25 November 2004).
16
Powers & Du,es
4. Signature Witnessing – a notarial act in which an individual on a single occasion: i. appears in person before the notary public and presents an
instrument or document; ii. is personally known to the notary public or iden,fied by the notary
public through competent evidence of iden,ty as defined by these Rules; and
iii. signs the instrument or document in the presence of the notary public.
17
Powers & Du,es
5. Copy Cer,fica,on – a notarial act in which a notary public: i. is presented with an instrument or document that is neither a vital
record, a public record, nor publicly recordable; ii. copies or supervises the copying of the instrument or document; iii. compares the instrument or document with the copy; and iv. determines that the copy is accurate and complete. Notary public cannot deny his own cer8fica8on • A notary public should not be allowed to turn against his own
cer,fica,on. If he were allowed to do so, such cer,fica,on would be worthless and unreliable. The public xxx would be at a loss. (Borlaza vs. Ramos, CA-‐G.R. No. 2319-‐R, 16 July 1951)
18
Powers & Du,es
6. Any Other Act Authorized by the Rules
• cer,fy the affixing of a signature by thumb or other mark on an instrument or document presented for notariza,on
• sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document
19
Powers & Du,es
• Presump8on: Notary Public must see to it that par8es are acquainted with the nature and consequences of their acts acknowledged before him – It is part of the du,es of a notarial officer not only to demand that a
document be signed in his presence, but also to see to it that the par,es are acquainted with the nature and consequences of their wriYen acts acknowledged before him if it appears that the laYer are not aware thereof. This is the ordinary course of official duty which is presumed. Only a clear evidence of fraud and bad faith will overcome the presump,on (Phil. Trust Co. vs. Roldan, CA-‐G.R. No. 6747-‐R, May 12, 1954).
20
Powers & Du,es
• Acknowledgement of a natural child s8ll unborn before a notary public: insufficient – Manresa expressed the opinion that the acknowledgment of a child
s,ll unborn is permissible but this court has already held that an acknowledgement before a notary is insufficient and that there must a judicial proceeding in the regular way (In Re: Judicial approval of the acknowledgement of a natural child, Zenaida Jiro-‐Mori thru her guardian ad litem Lorenza J. Vda. De Balagtas, G.R. No. L-‐1672, 28 April 1949).
21
Competent Evidence of Iden,ty
• refers to the iden,fica,on of an individual based on: i. At least one current iden,fica,on document issued by an official
agency bearing the photograph and signature of the individual; or ii. The oath or affirma,on of one credible witness not privy to the
instrument, document or transac,on who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is a privy to the instrument, document or transac,on who each personally knows the individual and shows to the notary public documentary iden,fica,on. (Tupal vs Rojo, A.M. No. MTJ-‐14-‐1842, February 24, 2014)
22
Competent Evidence of Iden,ty
• Notaries Public are cau,oned to be very careful and diligent in ascertaining the true iden,,es of the par,es execu,ng a document before them (Vda. De Bernardo vs Restauro, 404 SCRA 599, 25 June 2003).
• Notaries public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before said notary public to aYest to the contents and truth of what are stated therein. The acts of affiants cannot be delegated to anyone for what are stated therein are facts they have personal knowledge of and swore to the same personally and not through representa,ve(TalisicvsRinen, A. C. No. 8761, February 12, 2014).
23
Disqualified to Notarize
1. is a party to the instrument to be notarized • including agent and trustee, and a partner for his co-‐partner in a
maYer which the firm is interested (20 R.C.L., 334-‐335; 39 Am. Jur. 220)
2. will receive, as a direct or indirect result, any commission, fee, advantage, right, ,tle, interest, cash, property, or other considera,on, except as provided by these Rules and by law; or
3. is a spouse, common-‐law partner, ancestor, descendant, or rela,ve by affinity or consanguinity of the principal within the fourth civil degree (Sec. 3, Rule IV).
24
Prohibited Acts
• A notary public shall not: 1) execute a cer,ficate containing informa,on known or believed by the
notary to be false. 2) affix an official signature or seal on a notarial cer,ficate that is
incomplete. (Sec. 5, Rule IV)
• A notary public shall not notarize: 1) a blank or incomplete instrument or document; or 2) an instrument or document without appropriate notarial
cer,fica,on. (Sec. 6, Rule IV)
25
Prohibited Acts
• A person shall not perform a notarial act if the person involved as signatory to the instrument or document: 1) is not in the notary's presence personally at the ,me of the
notariza,on; and 2) is not personally known to the notary public or otherwise iden,fied
by the notary public through competent evidence of iden,ty as defined by these Rules (Agbulos vs Viray, A. C. No. 7350, February 18, 2013).
26
Refusal to Notarize
1. the notary knows or has good reason to believe that the notarial act or transac,on is unlawful or immoral;
2. the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transac,on requiring a notarial act; and
3. in the notary's judgment, the signatory is not ac,ng of his or her own free will (Sec. 4, Rule IV).
27
Notarial Fees
• A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees (Sec. 5, Rule V).
• The following are the prescribed schedule of fees: a) For protests of drals, bills of exchange, or promissory notes for non-‐acceptance or
non-‐payment, and for no,ce thereof, P100.00; b) For the registra,on of such protest and filing or safekeeping of the sameP100.00; c) For authen,ca,ng powers of aYorney, P100.00; d) For sworn statement concerning correctness of any account or other document,
P100.00; e) For each oath of affirma,onP100.00; f) For receiving evidence of indebtedness to be sent outside, P100.00; g) For issuing a cer,fied copy of all or part of his notarial register or notarial records, for
each page, P100.00; h) For taking deposi,ons, for each page, P100.00; and i) For acknowledging other documents not enumerated in this sec,onP100.00. (Sec. 12,
Rule 141 of the Rules of Court as amended by A.M. No. 04-‐2-‐04-‐SC)
28
Notarial Register
• A notary public shall keep, maintain, protect and provide for lawful inspec,on as provided in the Rules, a chronological official notarial register, furnished by the Solicitor General, of notarial acts consis,ng of a permanently bound book with numbered pages (Sec. 1, Rule VI).
29
Notarial Register
• For every notarial act, the notary shall record in the notarial register at the ,me of notariza,on the following: 1) the entry number and page number; 2) the date and ,me of day of the notarial act; 3) the type of notarial act; 4) the ,tle or descrip,on of the instrument, document or proceeding; 5) the name and address of each principal; 6) the competent evidence of iden,ty as defined by these Rules if the signatory is not
personally known to the notary; 7) the name and address of each credible witness swearing to or affirming the person's
iden,ty; 8) the fee charged for the notarial act; 9) the address where the notariza,on was performed if not in the notary's regular place
of work or business; and 10) any other circumstance the notary public may deem of significance or relevance (Sec
2., Rule VI).
30
Failure to Register
• The notarial registry is a record of the notary public’s official acts. Acknowledged documents and instruments recorded in it are considered public documents. If the document or instrument does not appear in the notarial records and there is no copy of it therein, doubt is engendered that the document or instrument was not really notarized, so that it is not a public document and cannot bolster any claim made based on this document. Considering the eviden,ary value given to notarized documents, the failure of the notary public to record the document in his notarial registry is tantamount to falsely making it appear that the document was notarized when in fact it was not. xxx. This is a clear viola,on of the Notarial Law for which he must be disciplined (Soriano vs Basco, A.C. No. 6648, Sept. 21, 2005).
31
Delega,on to Secretaries
• Considering that the responsibility aYached to a notary public is sensi,ve respondent should have been more discreet and cau,ous in the execu,on of his du,es as such and should not have wholly entrusted everything to the secretaries; otherwise he should not have been commissioned as notary public (Spouses Santuyo Vs. AEy. Hidalgo, A.C. No. 5838, 17 January 2005).
32
Effect of Ante-‐da,ng
• AYy. Mateo admiYed that although See Chua-‐Gokioco signed and subscribed the civil complaint at an earlier date, he only entered the fact of the signing and subscribing of the said complaint much later, that is, on the date of the filing of the said civil complaint.
• However the Supreme Court held that the notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledging the instrument. It cannot be stressed enough that notaries public should be truthful in carrying out their func,ons. They must observe with the highest degree of care the basic requirements in the performance of their du,es in order to preserve the confidence of the public in the integrity of the notarial system. Courts, agencies and the public at large must be able to rely upon the acknowledgment executed by notaries public appended to instruments (Gokioco vs. AEy. Mateo, A.C. No. 4179, 11 November 2004).
33
Punishable Acts
• The Execu,ve Judge shall cause the prosecu,on of any person who; a) Knowingly acts or otherwise impersonates a notary public; b) Knowingly obtains, conceals, defaces or destroys the seal, notarial
register, or official records of notary public; and c) Knowingly solicits, coerces, or in any way influences a notary public
to commit official misconduct (Sec. 1, Rule XII).
34
Impersona,on by a Lawyer
• Where the notariza,on of a document is done by a member of the Philippine Bar at the ,me when he has no authoriza,on or commission to do so, the offender may be subjected to disciplinary ac,on. For one, performing a notarial act without such commission is a viola,on of the lawyer’s oath to obey the laws, more specifically the Notarial Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood (Nunga vs. Viray, A.C. No. 4758. April 30, 1999).
• The Court has characterized a lawyer’s act of notarizing documents without the requisite commission therefore as “reprehensible, cons,tu,ng as it does not only malpactrice but also x x x the crime of falsifica,on of public documents (Zoreta vs. Simpliciano, A.C. No. 6492, November 18, 2004, 443 SCRA 1).
35
