Notary Laws in New Jersey
In New Jersey, like many states, a notary public is authorized at their core to perform a variety of official acts, usually related to taking acknowledgments or evidencing a verification by oath or affirmation. These "official acts" are generally performed on documents of various kinds that are presented by individuals seeking notarization. The general law authorizing notaries to perform these acts appears in the following section of New Jersey Statute:
46:14-2.1. Notaries public; powers
Every person authorized to act as a notary public shall have power to administer oaths and affirmations, take requests for and accept acknowledgments, take proofs of deeds and other written instruments and certify them under his hand and seal of office. (Emphasis added).
In addition to certifying deeds and written instruments, notaries public in New Jersey are often requested to notarize other documents including contracts, powers of attorney, release of claims, court orders, receipts and other writings.
Particular formalities are required of persons seeking notarization in connection with the transfer of real property. A deed to real property in New Jersey requires certain foundational attributes such as consideration provided, acceptance and internal rules related to the powers of a grantee. In fact , the New Jersey Statutes governing the rights and powers of its citizens—known as Title 46—specifically require a deed to be duly acknowledged or proved:
46:15-1. Form and execution of deed; acknowledgment
Every deed shall be executed by the party executing it and shall be certified under the hand and seal of the officer taking the acknowledgment, specifying therein the date of taking, and also the name, residence and professional status, if any, of the officer. Execution by a corporation shall be authenticated by the seal of the corporation or by the signature of a majority of the directors.
In order to accomplish its intention to convey, a deed must not only be delivered, but also:
a. Must be executed by the grantor or by his or its duly authorized attorney;
b. Must be made subject to the statutory forms of execution and acknowledgment required by sections 46:15-1 through 46:15-4, inclusive, of this title, and must have substantially the same legal force as if made in that form; and
c. Must be made under the deed of bargain and sale or under the covenant of general warranty in order to have any force and effect as against a subsequent purchaser or mortgagee for valuable consideration without notice . . . . (Emphasis added).
In short, a notarized document in New Jersey must be executed by the grantor or the grantor’s authorized agent. Further, it must be approved by a New Jersey attorney or an official notary public with the State of New Jersey.
Notably, most deeds and these designated powers of attorney must be recorded with the county clerk.
The Notary Role of Attorneys
Attorneys have a unique role when it comes to notarizing documents in New Jersey. Under New Jersey law, attorneys are not only able to act as notaries, but the requirements for notarization of a document differ slightly compared to that found in many other jurisdictions.
While an individual in New Jersey must be at least 18 years of age, of sound mind, able to read and write in the English language, and a resident of the State of New Jersey to operate as a notary public, attorneys may be appointed without subscribing to the office in the same manner. Instead, upon being appointed as an attorney at law, an attorney qualifies as a notary public without having to formally subscribe to the position.
Generally speaking, gaining authorization as a notary public in New Jersey does not require the taking of an exam (as it normally does in other states) or a notary seal (although notary stamps are allowed). As a result, attorneys generally have an easier time becoming notaries public in New Jersey than in many other jurisdictions. Additionally, attorneys with offices in both Pennsylvania and New Jersey can be appointed as notaries in both states.
Due to this special treatment, not all documents signed in accordance with New Jersey law will require an apostille stamp when used for international purposes (for example, in other countries). This is because attorneys signing on behalf of clients do not always require notarization of a document prior to signing it.
When notarizing signatures, attorneys must follow the same standards as normal notaries under Section 5 of the Notary Public Act, N.J.S.A. 52:7-1 et seq., which requires that he or she be satisfied that the person signing the instrument is himself or herself the signer. This means that the attorney must take care to ensure that the signature provided for notarization actually belongs to the person signing the notary certificate.
Have Your Documents Notarized Without a Stamp: Yes, You Can
In New Jersey, attorneys who are members of the bar may perform notarial acts without the affixing of an official stamp or seal. N.J.S.A 41:6-1. However, this does not exclude the requirement that all notarial acts be performed within New Jersey. Specifically, the statute provided as follows: a. [A]ny person authorized by law to administer oaths and affirmations in this State may certify that an affidavit or other written instrument has been sworn to or attested before him or her by subscribing to affixed or stamped thereon his or her name, in his own handwriting or by means of a rubber stamp, seal, or other commercial device, one of the following words: "sworn," "fore sworn," "attest," "subscribed and sworn," or "subscribed and sworn to," or words of similar import, followed by the words "New Jersey," the name of the county (or, if made before a municipal corporation, the name of the municipality) as well as the month, day and year. N.J.S.A. 41:6-2. (Emphasis added.) My interpretation of this statute is that an attorney in New Jersey is permitted to notarize documents without a stamp or seal. However—and I cannot prove it—I have never heard of an attorney actually noticing a document without using an official rubber stamp. It would be a rarity in the practice to see an attorney go in without an official rubber stamp. In my opinion, the first step in the process is to check what the requirements are for notarizing in the state or jurisdiction where you reside. You may be able to forgo the use of an official stamp or seal as an attorney in New Jersey, but the same does not hold true in other states. Check your local required information for notarizing and defer to such requirements when performing such a notarial act on a document. Essentially, when it comes down to it, each attorney should confer with a specific statute in order to determine whether they are legally permitted to notarize without using their official stamp or seal.
Myths Associated with Notary Stamps
A common misconception among some attorneys is that they are required to use a stamp with their notary seal; otherwise, the notarized instruments will be considered null and void. This, however, is not the case and is certainly not the law in New Jersey. The New Jersey statute merely states that no person is permitted to perform notarial acts unless he or she has a seal or other authorized facsimile device. See N.J.S.A. § 52:7-1(a). Also, according to the New Jersey Statutes , the officer who performs the notarial act must also sign the instrument containing the notarized signature and affix an impression of the official seal or an authorized facsimile in a manner that retains the impression on the document when it is imprinted. In fact, in addition to the requirement that lawyers be duly admitted to practice, only three items need to be placed on an attorney seal or stamp: Accordingly, a notary seal that does not contain the county, date, and serial number does not run afoul of any law in New Jersey.
Legal Implications of a Bad Notary
When not executed in accordance with the legal formalities, a notarized document may be deemed to be invalid. Such flaws in notarizing can result in confusing and/or even costly problems. Both civil and criminal penalties exist for improper notarization of documents. In more recent years, a number of states have enacted legislation and regulations to clarify or expand their laws regarding the notarization of documents. Mistakes committed while notarizing documents can even lead to a loss of a notary public’s commission.
The ramifications can be immense when an improperly notarized document is filed with a court, or is the subject of litigation. For instance, suppose that a corporation is taking action and relies upon the existence of a shareholder agreement under which the corporation was to take a loan secured by the shares of stock owned by its shareholders. Assuming that the loan is for $250,000, when a court later excuses the corporation from performance under the shareholder agreement because the agreement is deemed not to be enforceable, the court will almost certainly consider whether the agreement satisfied all the necessary documentation requirements to be enforceable. If the signatory failed to execute the mortgage with the digital stamp of the notary, the court may easily deem the mortgage to be invalid and unenforceable. Because the business will have relied upon this agreement in taking out the loan, it may find that it is unable to easily refinance the loan or that it will sustain a loss by having to pay substantially more to secure a new loan.
Notarial errors may come back to haunt a corporation as it tries to do business. A deed signed by a corporate officer, although apparently valid on its face, may be found invalid if the officer failed to properly notarize it. A deed may fail to convey good title if the seal was not affixed in the appropriate place. If a corporation purchases real estate for $500,000, it could sustain a substantial loss if the deed it received turns out to be invalid because the purchase was not properly executed.
Notaries are appointed by the state. States may impose criminal penalties when a notary public willfully or intentionally:
A notary may also be exposed to civil liability and financial penalties if a document is the subject of litigation as to its validity, such as a mortgage document. The penalties may include treble damages.
When agencies investigate allegations of fraud, the notary may be fined, imprisoned, or both, depending on the severity of the crime.
Fraud penalties are not limited to criminal proceedings. Notaries may also be subject to civil actions for fraudulent practice. Fines, including treble damages, may be imposed. In addition to an award of damages, costs and attorney’s fees, may be awarded to the prevailing party. Finally, in a civil action, one at fault may be ordered to pay punitive damages if it is determined that the offender willfully or recklessly violated the law or engaged in willful misconduct. A prevailing party may be entitled to recover reasonable attorneys’ fees and other expenses, in addition to the damages, costs, and punitive damages, if the action is found to be oppressive, frivolous, or vexatious, or was commenced or continued without substantial justification.
New Jersey Best Practices for Attorneys
First, if an attorney who is also a notary provides notary services, they should choose one method and use it cautiously. If the attorney is to always use a stamp, then the attorney must ensure that he or she has the stamp readily available to notarize documents. Further, the stamp must be properly re-inked as necessary without delay. If the attorney continually uses the signature alone, it is expected that the attorney will always use the signature alone.
In addition, if the attorney intends to use the stamp only on occasion, then it is recommended that the attorney have three (3) stamps available. The attorney should keep one at home, one in the office with appropriate supervision, and another secured within a lock box in a secure environment. In addition , attorneys should keep their notary commission and notary book with the stamps in its proper location.
It is also recommended that a notary book includes an attachment for every notary stamp that may be used. For example, if the attorney has one stamp using Chester and Rosenthal, he or she should have an attachment including Chester and Rosenthal. If the attorney then separately had a stamp created with his or her name only that he or she intends to use on the rare occasion, it is recommended that an additional attachment be created for that purpose. The attachment should have an imprint of the signatures and seals. In addition, to protect against stamping errors or recommendations for a missed stamping, the attorneys should also consider including adhesive labels within their notary book, which is a practice commonly utilized to cover-up stamping errors.