The Fundamental Principles of Acknowledgement
[This version was written for land recording offices.]
Lately, there has been an increase in interest about the role of the notary public and about the process of
taking an acknowledgement, which is required to validate most real estate transactions in the United
States. This subject, which has in the past gotten scant attention outside the land recording community,
now has surfaced because of interest in electronic signatures, which were given legal standing by recent
legislation passed in Congress that gives electronic signatures in any form the same status as good old
written signatures.
Some say that the acknowledgement system is unreliable, that it is “broken.” Among the reasons behind
this opinion are thoughts like: “There are few controls on who is granted a notary public license,”
“Notaries are ill trained” and “The acknowledgment system is rife with potential for fraud.”
Some seem to believe that electronic signatures are the magic potion that will cure all the ills in the
acknowledgment system, even to the point of replacing notaries and redefining the concept of
acknowledgment. Some states have already enacted legislation to create a separate category of electronic
notary public and/or to change the fundamental principles of acknowledgement.
All those who have an interest in the role of the notary public and in the process of taking an
acknowledgement—that is, title companies, mortgage lenders, realtors, land recorders, legislators and
state officials—should attain a common understanding of (1) the fundamental principles of
acknowledgement (2) the purpose and role of the notary public before state legislatures decide on
potentially radical changes to the applicable statutes.
In order to get the discussion started, I propose that there are eight fundamental principles of
acknowledgment of a contract involving real property, as follows:
No.
1
Principle
Personal Appearance
2
Government Official
3
Transaction Based
4
Identity
5
Capacity
6
Acceptance
7
Intent
8
Non Duress
Explanation
The signer appears in person before a notary public or other
official who can take acknowledgements according to statute.
The notary public is a government official (not an entity)
designated by law to take acknowledgements.
The signer’s acknowledgement references a specific document
that representing a real estate transaction.
The signer proves she is the same person as signed the specific
document.
The signer states the capacity in which she is signing—as an
individual, corporate officer, etc.
The signer acknowledges that the signature on the specific
document is hers.
The signer acknowledges that she intended to sign the specific
document.
The signer acknowledges that she signed the specific document of
her own free will.
(Principles 6-8 are sometimes gathered together under the term “willing consent.”)
In other words, according to the typical statutes of each state with respect to taking an acknowledgement,
there is a ceremony involving notary public and signer. The signer appears (fundamental principle #1)
before a government official (for example, a notary public, fundamental principle #2) with a document in
hand (fundamental principle #3). The signer acknowledges before the notary public that:
(1)
(2)
(3)
(4)
The signer is the person named in the document (fundamental principle #4).
The signer affirms in what capacity the signature is to be taken (fundamental principle #5).
The signer affirms that the signature on the document is that of the signer (fundamental principle #6).
The signer knows what the document is about, and affirms that she intended to sign it (fundamental
principle #7) without duress (fundamental principle #8)
© 2003 Carl R. Ernst, Ernst Publishing Co., LLC
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Some state statutes even go beyond these eight principles. In Florida for example a notary public appears
to be responsible to determine the mental health of the signer. Such requirements, however, may be seen
as extending the responsibility of the notary public beyond what is reasonable. Therefore, I believe the
eight principles are sufficient to define the traditional role of the notary public with respect to real estate
transactions throughout the US.
Please send your comments, concerns, and questions about this subject to Carl R. Ernst by email
(carl.ernst@ernst.cc) or fax (1-800-822-0703). I will respond to your questions and will share your
thoughts with others who have an interest in the role of the notary public and in the process of taking an
acknowledgement.
© 2003 Carl R. Ernst, Ernst Publishing Co., LLC
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