Real Property Law Section 309

Section 309 of the Real Property sets forth the general statutory acknowledgment forms for corporations, and it was amended to accommodate both genders, as well as the plural.

Real Property Law Section 309-A

New section 309-a which sets forth the acknowledgment which must be used, within NYS, of conveyances or other instruments in respect to real property situate in this state.

“person”

“any corporation, joint stock company, estate, general partnership (including any registered limited liability partnership or foreign limited liability partnership), limited liability company (including a professional service limited liability company), foreign limited liability company (including a professional service limited liability company), joint venture, limited partnership, natural person, attorney in fact real estate investment trust, business trust or other trust, custodian, nominee or any other individual or entity in its own or any representative capacity”

Professional Conduct

Use of the office of NP in other than the specific step by step procedure required is viewed as a serious offense by the SOS. The practice of taking acknowledgment or affidavits over the telephone, or otherwise, without the actual, personal appearance of the individual making the acknowledgment or affidavit before the officiating notary, is illegal.

Simplest Form in which an oath may be lawfully administered is:

“Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?”

Simplest form in which an affirmation may be lawfully administered:

“Do you solemnly, sincerely and truly declare and affirm that the statements made by you are true and correct?

Activities involving the practice of law which are prohibited, and which subject the notary public to removal from office by the Secretary of State, and possible imprisonment, fine or both:

1.       May not give advice on the law.

2.       May not ask for/get legal business to send to a lawyer/s with whom he has any business connection or from whom he receives and money/consideration for sending business.

3.       May not divide/agree to divide fees with a lawyer

4.       May not advertise in, or circulate in any manner, any paper ad, or say to anyone he has any powers/rights not given to NP

5.       A NP is cautioned not to execute an acknowledgment of the execution of a will.

Executive Law

§130 Appointment of notaries public

-Term of 4 years

-Must be a citizen of the US/resident of NY

-Non-resident with a place of business can be a NP

-The SOS may suspend/remove any NP for misconduct with notification/served copy of charges against him

-A person regularly admitted to practice as an attorney may be appointed a NP

Executive Law

§131 Procedure of appointment; fees and commissions

-NP shall submit to SOS their application and oath of office

-SOS issues commission/taking of official signature

-NP id card issued with name, address, county and commission term

-copy goes to county clerk

-go to county clerk for reappointment

-county clerk sends notification to SOS of reappointment

-$10 fee change of address/name of NP

-$10 fee for replacement identification card

Executive Law

§ 132 Certificates of official character of notaries public

SOS or county clerk may certify to the official character of a NP and a NP may file his autograph signature and a copy of official character.

Executive Law

§ 133 Certification of notarial signatures

When requested county clerk may affix to any certificate of proof of acknowledgment/oath signed by NP a certificate under his hand and seat, stating that a commission/certificate of character with his autograph has been filed in his office.

An instrument with such certificate of authentication of the county clerk affixed shall be entitled to be read in evidence or recorded

Executive Law

§ 140 Executive Law

-No person who has been removed from office as commissioner of deeded for the City of NY, can be a NP

-If continues to sign/execute official documents shall be deemed guilty of misdemeanor

Executive Law

§ 3-200 and 3-400. Election Law

A commissioner of elections or inspector of elections is eligible for the office of NP

Executive Law

§3 Public Officers Law

NO person is eligible for the office of NP who has been convicted of a violation of the selective draft act of the US enacted May 18, 1917, or the acts amendatory or supplemental thereto, or of the federal selective training and service act of 1940 or the acts amendatory thereof or supplemental thereto.

Executive Law

§ 534 County Law

Each county clerk shall designate from among members of his/her staff at least one notary public to be available to notarize documents for the public in each county clerk’s office during normal business hours free of charge.

Executive Law Misc.

Member of legislature

A member of the legislature may be appointed a NP in view of transfer of power of such appointment from the governor and senate to the SOS.

Executive Law Misc.

Sheriffs

Sheriffs shall hold no other office.

Executive Law Misc.

Notary public—disqualifications

Though a person may be eligible to hold the office of NP the person may be disqualified to act in certain cases by reason of having an interest in the case

If the notary is a party to or directly and pecuniarily interested in the transaction, the person is not capable of acting in that case.

Powers & Duties

Executive Law

§134 Signature and seal of county clerk

The signature and seal of a county clerk, upon a certificate of office character of a NP or the signature of a county clerk upon a certificate of authentication of the signature and acts of a NP or commissioner of deeds, may be a facsimile, printed, stamped, photographed or engraved thereon.

Powers & Duties

Executive Law

§135 Powers and duties; in general; of notaries public who are attorneys at law

A NP who is an attorney at law regularly admitted to practice in this State may, in his discretion, administer an oath or affirmation to or take the affidavit or acknowledgment of his client in respect of any matter, claim, action or proceeding.

For any misconduct by a NP in the performance of any of his powers such NP shall be liable to the parties injured for all damages sustained by them.

Every NP having a seal, shall except as otherwise provided, and when requested, affix his seal to such protest free of expense.

Powers & Duties

Executive Law

§135-a Notary public or commissioner of deeds; acting without appointment; fraud in office

Any person who fakes being a NP is guilty of a misdemeanor.

A NP who practices any fraud or deceit is guilty of a misdemeanor.

Powers & Duties

Executive Law

§136 Notarial fees

$2 to administer an oath/affirmation

$2 for taking/certifying the acknowledgment/proof of execution of a written instrument per person

Powers & Duties

Executive Law

§ 137 Statement as to authority of notaries public

A NP, in addition to the venue of his act and his signature, shall print/typewrite, or stamp beneath his signature in black ink, his named, the words “Notary Public State of New York,” the name of the county in which he originally qualified, and the date upon which his commission expiers, and in addition, wherever required, a NP shall also include the name of any county his certificate of official character is filed “Certificate filed ____ County”

A NP qualified in City of NY must also affix his official identification number in black ink

Powers & Duties

Executive Law

§138 Powers of notaries public or other officers who are stockholders, directors, officers or employees of a corporation

A NP who is a stockholder, director, officer or employee of a corp. may take the acknowledgment of proof of any party to a written instrument executed to or by such corp./ or administer an oath of any employee/agent of corp. except if the NP be individually a party to such instrument or have a financial interest in the subject of the same.

Powers & Duties

Executive Law

§142-a Validity of acts of notaries public and commissioners of deeds notwithstanding certain defects

Real Property Law

290 Definitions; effect of article

The term “conveyance” includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien

Real Property Law

§298 Acknowledgments and proofs within the state

The acknowledgement or proof, within this state, of a conveyance of real property situate in this State may be made: 1. At any place within the state, before a NP.

2. Within the district wherein such officer is authorized to perform official duties before, not a NP

Real Property Law

§302 Acknowledgments and proofs by married women

The acknowledgement or proof of a conveyance of real property, within the state, or of any other written instrument, may be made by a married woman the same as if unmarried.

Real Property Law

§303 Requisites of acknowledgments

An acknowledgement must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument.

Real Property Law

§304 Proof by subscribing witness

When the execution of a conveyance is proved by a subscribing witness, such witness must state his own place of residence, and if his place of residence is in a city, the street and street number, and that he knew the person described in/who executed the conveyance. The proof must be taken unless the officer is personally acquainted with such witness, or has satisfactory evidence that he is the same person, who was a subscribing witness to the conveyance

Real Property Law

§306 Certificate of acknowledgement or proof

A person taking the acknowledgment or proof of a conveyance must endorse thereupon or attach thereto, a certificate, signed by himself, stating at the matter required to be done, known, or proved on the taking of such acknowledgment/proof; together with the name and substance of the testimony of each witness examined before him, and if a subscribing witness, his place of residence

Real Property Law

§309-a. Uniform forms of certificates of acknowledgement within this state

State of New York                 )

                                                )ss.:

County of xxx                         )

On the xx day of xxx in the year of xxx before me, the undersigned, personally appeared xxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument

Signature and office of individual taking acknowledgment

Real Property Law

§309-a. Uniform forms of certificate for a proof of execution within this state

State of New York                 )

                                                )ss.:

County of xxx                         )

On the xx day of xxx in the year of xxx before me, the undersigned, personally appeared xxx , the subscribing witness to the foregoing instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he/she/they reside(s) in xxx; that he/she/they know(s) xxx to be the individual described in and who executed the foregoing instrument, that said subscribing witness was present and saw said xxx execute the same; and that said witness at the same time subscribed his/her/their name(s) as a witness hereto.

Signature and office of individual taking acknowledgment

Real Property Law

§309-b. Uniform forms of certificate of acknowledgment without this state

State, District of Columbia     )

Territory, Possession, or          )ss.:

Foreign Country                      )

On the xx day of xxx in the year of xxx before me, the undersigned, personally appeared xxx , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument

Signature and office of individual taking acknowledgment

Real Property Law

§309-b. Uniform forms of certificate of proof of execution without this state

State, District of Columbia     )

Territory, Possession, or          )ss.:

Foreign Country                      )

On the xx day of xxx in the year of xxx before me, the undersigned, personally appeared xxx , the subscribing witness to the foregoing instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he/she/they reside(s) in xxx; that he/she/they know(s) xxx to be the individual described in and who executed the foregoing instrument, that said subscribing witness was present and saw said xxx execute the same; and that said witness at the same time subscribed his/her/their name(s) as a witness hereto.

Signature and office of individual taking acknowledgment

Real Property Law

§330 Officers guilty of malfeasance liable for damages

An officer authorized to take the acknowledgment/proof of conveyance or other instrument, or to certify such proof or acknowledgment, or to record the same, who is guilty of malfeasance or fraudulent practice in the execution of any duty prescribed by law in relation thereto, is liable in damages to the person injured.

Real Property Law

§333 When conveyances of real property not to be recorded

A recording officer shall not record/accept for record any conveyance of real property, unless said conveyance in its entirely and the certificate of acknowledgment/proof and the authentication thereof, other than proper names therein which may be in another language, shall be written in the English language. Or must be accompanied by a translation duly executed/acknowledged by the person(s) making such conveyance and proved/authenticated.

Real Property Law

*Special Note*

Any and all limitations to the authority of a NP to act as such in any part of the State have been removed; a NP may now, in addition to administering oaths or taking affidavits anywhere in the State, take acknowledgment and proofs of conveyances anywhere in the State.

Real Property Law

§335 Banking Law

If the rental fee of any safe deposit box is not paid/at least 30 days notice to the lessee, the lessor (Bank) may open/remove/inventory the contents in the presence of a NP. The NP shall then file with the lessor a certificate under seal which states the date of the opening of the safe deposit box, the name of the lessee, and a list of the contents.

Judiciary Law

§750 Power of courts to punish for criminal contempts

This rule authorizes a deposition to be taken before a NP in a civil proceeding.

Judiciary Law

Illegal Practice of law by a notary public

A NP has no authority to solemnize marriages; nor may a NP take the acknowledgment of parties and witnesses to a written contract of marriage.

Judiciary Law

Wills

Official oaths, permits the oath of a public officer to be administered by a NP.

Public Officers Law

§67 Fees of public officers

Except: (1) offiers of societies for the prevention of cruelty; (2)law students having completed 2 semesters of law school/graduated law school yet to receive notification of passing bar under supervision; (3)law school grads having failed bar 2x under supervision of state/subdivision thereof

Public Officers Law

§69 Fee for administering certain official oaths prohibited

Any person violating the provisions of §§478, 479, 480, 481, 482, 483, or 484, shall be guilty of a misdemeanor

Executive Law

Misconduct by a notary and removal from office

 Supreme court has power under this section to punish for a criminal contempt any person who unlawfully practices or assumes to practice law

Penal Law

§70.00 Sentence of imprisonment for felony

To make it a business to practice as an attorney at law, not being a lawyer, is a crime

Penal Law

§70.15 Sentences of imprisonment for misdemeanors and violation

The execution of wills under the supervision of NP acting in effect as a lawyer, “cannot be too strongly condemned, not only for the reason that it means an invasion of the legal profession, but for the fact that testators thereby run the risk of frustrating their own solemnly declared intentions and rendering worthless maturely considered plans for the disposition of estates whose creation may have been the fruit of lives of industry and self-denial

Penal Law

§170.10 Forgery in the second degree

A NP subjects himself to criminal prosecution, civil suit and possible removal by asking/receiving more than the statutory allowance, for administering the ordinary oath in connect with an affidavit.

Penal Law

§175.40 Issuing a false certificate

An officer is not entitled to a fee, for administering the oath of office to a member of the legislature, to any military officer, to an inspector of election, clerk of the poll, or to any other public officer or public employee.

Penal Law

§195.00 Official misconduct

A NP who, in the performance of the duties of such office shall practice any fraud/deceit, is guilty of a misdemeanor, and may be removed from office.

Penal Law

Notary must officiate on request

-The Maximum term of sentence of an indeterminate sentence shall be at least three years and the term shall be fixed as follows:

(d) Class D felony, the term shall be fixed by the court and shall not exceed 7 years;

(e) for a class E felony, the term shall be fixed by the court, and shall not exceed 4 years

Penal Law

Perjury

A sentence of imprisonment for a class A misdemeanor shall be a definite sentence. When such a sentence is imposed the term shall be fixed by the court, and shall not exceed 1 year

Acknowledgment