Powers of a notary public
A notary public is empowered to perform the following notarial acts: (JAO-CAS)
1. Acknowledgements;
2. Oaths and affirmations;
3. Jurats;
4. Signature witnessings;
5. Copy certifications; and
6. Any other act authorized by these rules (A.M.
No. 02-8-13-SC, Section 1(a), Rule IV)
Notarization of a private document
Notarization converts a private document to a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity and due execution. A notarized document is by law entitled to full credit upon its face and it is for this reason that notaries public must observe the basic requirements in notarizing documents
(
Dolores dela cruz, ET AL V. Atty. Jose Dimaano, Jr., September 12, 2008, A.C. No. 7781).Absence of notarization in a deed of sale
The absence of notarization of the Deed of Sale would not necessarily invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet it is also an accepted rule that the failure to observe the proper form does not render the transaction invalid. Thus, it has been uniformly held that the form required in Article 1358 is not essential to the validity or enforceability of the transaction, but required merely for convenience (Leonor Camcam v.
CA; Tigno v. Aquino).
Acknowledgment
Refers to an act in which an individual on a single occasion:
1. Appears in person before the notary public and presents an integrally complete instrument or document;
NOTE: A notary public cannot perform a notarial act over a document that has missing pages, or that contains blanks that should be filled-in prior to the notarial act.
2. Is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and
3. 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 particular representative capacity, that he has the authority to sign in that capacity (Sec. 1, Rule II, A.M.
02-8-13-SC).
Q: Cabanilla filed a complaint against Atty. Cristal-Tenorio with the IBP, alleging that he never appeared before her when she notarized the deed of sale of his house, and that the signatures appearing opposite
their respective names were forgeries. Did Atty.
Cristal-Tenorio fail to comply with the mandates of the law when she notarized the deed of sale without the complainant and his children? Does such failure warrant the revocation of her notarial commission?
A: Yes. Under Section 1(a) of Act 2103, a notary public taking the acknowledgment in a document or instrument is mandated to certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it and acknowledged that the same is his free act and deed. To "acknowledge before" means to avow; to own as genuine, to assert, to admit; and "before"
means in front or preceding in space or ahead of. A party acknowledging must appear before the notary public. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before the said notary public to attest to the contents and truth of what are stated therein. The presence of the parties to the deed making the acknowledgment will enable the notary public to verify the genuineness of the signature of the affiant. A notary public is enjoined from notarizing a fictitious or spurious document. The function of a notary public is, among others, to guard against any illegal deed (Cabanilla v.
Cristal-Tenorio, A.C. No. 6139, Nov. 11, 2003).
Q: “Before me personally appeared this 30th of August 2010 Milagros A. Ramirez, who proved her identity to me through witnesses: 1. Rosauro S.
Balana, Passport UU123456; 1-5-2010/Baguio City;
and 2. Elvira N. Buela, Passport VV200345; 1-17-2009/Manila. “Both witnesses, of legal ages, under oath declare that: Milagros A. Ramirez is personally known to them; she is the same seller in the foregoing deed of sale; she does not have any current identification document nor can she obtain one within a reasonable time; and they are not privy to or are interested in the deed he signed.” What is the status of such a notarial acknowledgement? (2011 Bar Question)
A: Valid, since it is a manner of establishing the identity of the person executing the document.
Jurat
Refers to an act in which an individual on a single occasion:
1. Appears in person before the notary public and presents an instrument or document;
2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice;
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3. Signs the instrument or document in the presence of the notary; and
4. Takes an oath or affirmation before the notary public as to such instrument or document (A.M.
02-8-13-SC, Sec. 6, Rule II).
NOTE: A jurat is not a part of a pleading but merely evidences the fact that the affidavit was properly made. The claim or belief of Atty. Dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest (Gamido v. Bilibid Prisons Officials, G.R. No. 114829, Mar. 1, 1995).
Acknowledgment v. Jurat
ACKNOWLEDGMENT JURAT
Act of one who has
executed a deed, in going to some competent officer or court and declaring It to be his act or deed
The notary public or officer taking the authorize the deed to be given in evidence without further proof of its
execution, and, to entitle it to be recorded. facts or attests to the truth of an event, presents an instrument or document;
2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and
3. Signs the instrument or document in the presence of the notary public (A. M. No. 02-8-13-SC, Sec. 14, Rule II).
Q: Is a notary public authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization?
(1995 Bar Question)
A: Yes. It is also within the powers of a notary public, provided:
1. The thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document;
2. Both witnesses sign their own names in addition to the thumb or other mark;
3. The notary public writes below the thumb or other mark: “thumb or other mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public”; and
4. The notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat or signature witnessing.
(Sec. 1(b), Rule IV, A.M. No. 02-8-13-SC)
Q: Is a notary public authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document? (1995 Bar Question)
A: Yes. It likewise falls within the powers of a notary public, provided:
1. The notary public is directed by the person unable to sign or make a mark to sign on his behalf;
2. The signature of the notary public is affixed in the presence of 2 disinterested and unaffected witnesses to the instrument or document;
3. Both witnesses sign their own names;
4. The notary public writes below his signature:
“Signature affixed by notary in the presence of (names and addresses of person and 2 witnesses)”; and
5. The notary public notarizes his signature by acknowledgment or jurat (A.M. 02-8-13-SC, Sec.
1(c), Rule IV).
Copy certification
Refers to a notarial act in which a notary public:
1. Is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable;
2. Copies or supervises the copying of the instrument or document;
3. Compares the instrument or document with the copy; and
4. Determines that the copy is accurate and complete (A.M. 02-8-13-SC, Sec. 4, Rule II).
NOTE: The document copied must be an original document.
It cannot be a copy itself.
Notarial certificate
Refers to the part of, or attachment to a notarized instrument or document that is completed by the notary public which bears the notary's signature and seal, and states the facts attested to by the notary public in a particular notarization as provided for by the Rules on Notarial Practice (A. M. No. 02-8-13, Sec.
8, Rule II).
NOTE: “Loose notarial certificate” refers to a notarial certificate that is attached to a notarized instrument or document.
Limitations to the performance of a notarial act A person shall not perform a notarial act if the person involved as signatory to the instrument or document is:
a. Not in the notary's presence personally at the time of the notarization; and (A.M. No. 02-8-13-SC, Sec. 2(b)(1), RuleIV).
b. Not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice (A.M. No. 02-8-13-SC, Sec.2(b)(2), Rule IV)
c. The document is blank or incomplete; (A.M. 02-8-13-SC, Sec.6 (a) Rule IV)
d. An instrument or document is without appropriate notarial certification (A.M. 02-8-13-SC, Sec. 6, Rule IV).
Q: Engineer Cynthia de la Cruz Catalya filed an application for building permit in connection with the renovation of a building situated on a lot owned by her brother Rolando de la Cruz. One of the documents required in the processing of the application was an affidavit to be executed by the lot owner. Since Rolando de la Cruz was a resident abroad, an affidavit was prepared wherein it was made to appear that he was a resident of Leyte. Atty.
Francisco Villamor notarized the purported affidavit.
According to him, a Chinese mestizo appeared in his law office one time, requesting that his affidavit be notarized. Said person declared that he was Rolando de la Cruz. Atty. Villamor then asked for the production of his residence certificate, but he said, he did not bother to bring the same along with him anymore as, he has already indicated his serial number, in the jurat portion together with the date of issue and place of issue. Did Atty. Francisco Villamor commit a violation of notarial law?
A: Yes. It is the duty of the notarial officer to demand that the document presented to him for notarization should be signed in his presence. By his admission, the affidavit was already signed by the purported affiant at the time it was presented to him for notarization.
Atty. Villamor thus failed to heed his duty as a notary public to demand that the document for notarization be signed in his presence (Traya Jr. v. Villamor, A.C. No.
4595,Feb. 6, 2004).
Q: During their lifetime, the Spouses Villanueva acquired several parcels of land. They were survived by their 5 children: Simeona, Susana, Maria, Alfonso, and Florencia. Alfonso executed an Affidavit of Adjudication stating that as “the only surviving son and sole heir” of the spouses, he was adjudicating himself a parcel of land. Thereafter, he executed a Deed of Absolute Sale, conveying the property to Adriano Villanueva. Atty. Salud Beradio appeared as notary public on both the affidavit of adjudication and the deed of sale. Atty. Beradio knew of the falsity of Alfonso’s statement. Florencia and descendants of the other children of the spouses were still alive at the time of execution of both documents. Was there a failure to discharge properly the duties of a notary public?
A: Yes. Atty. Beradio’s conduct breached the Code of Professional Responsibility, which requires lawyers to obey the laws of the land and promote respect for the law and legal processes as well as Rule 1.01 of the Code which proscribes lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct.
She herself admitted that she knew of the falsity of Alfonso’s statement that he was the “sole heir” of the spouses. She therefore notarized a document while
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fully aware that it contained a material falsehood.
The affidavit of adjudication is premised on this very assertion. By this instrument, Alfonso claimed a portion of his parents’ estate all to himself, to the exclusion of his co-heirs. Shortly afterwards, Atty.
Beradio notarized the deed of sale, knowing that the deed took basis from the unlawful affidavit of adjudication (Heirs of the Late Spouses Lucas v .Atty.
Beradio, A.C. No. 6270, Jan. 22, 2007).
NOTE: If the notary public admited that he has personal knowledge of a false statement contained in the instrument to be notarized yet proceeded to affix his or her notarial seal on it, the court must not hesitate to discipline the notary public accordingly as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined and public confidence on notarial documents diminished (Ibid).
Disqualification of a notary public to perform a notarial act
A notary public is disqualified to perform notarial act when he:
1. Is a party to the instrument or document that is to be notarized;
2. Will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the Rules on Notarial Practice and by law; or
3. Is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree (A.M. No. 02-8-13-SC, Sec. 3, Rule IV).
NOTE: The function would be defeated if the notary public is one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it directly involves himself and the validity of his own act. It would place him in an inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted (Villarin v. Sabate, A.C. No. 3224,Feb. 9, 2000).
Instances when notary public may refuse to notarize 1. The notary knows or has good reason to believe that the notarial act or transaction 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 transaction requiring a notarial act;
3. In the notary's judgment, the signatory is not acting of his or her own free will; (A.M. No. 02-8-13-SC, Sec.4, Rule V) or
4. If the document or instrument to be notarized is considered as an improper document by the Rules
on Notarial Practice.
NOTE: Improper instrument/document is a blank or incomplete instrument or an instrument or document without appropriate notarial certification (A.M. No. 02-8-13-SC, Sec. 6, Rule V).
Affirmation or oath
Refers to an act in which an individual on a single occasion:
1. Appears in person before the notary public;
2. Is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the Rules on Notarial Practice; and
3. Avows under penalty of law to the whole truth of the contents of the instrument or document (Sec.
2,Rule II, A.M. No. 02-8-13-SC).
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