I suppose that most of us agree, at least in concept, with the idea of saving the whales. Is the same true for the seals – the notary seals, that is?

Notaries public (the correct plural form, as in attorneys general) are often employed in title insurance offices, law firms and other businesses that are involved in real estate transactions. Notaries’ attestations and seals are required for certain transactions under state laws, but the laws are not uniform. Notary associations keep handy online information on updates in state laws. (See links below.)

In these days of identity theft, “virtual” ID cards and the relative ease of producing a fairly exact copy of a driver’s license, does the notary’s attestation really provide added security in real estate and other transactions? Even the thumbprint that normally appears in the notary’s logbook is not a guarantee – you don’t need to be a “Bond villain” to fake a thumbprint anymore – go to www.wikihow.com and search for “fake fingerprints” for a step-by-step guide. And, many a college sophomore can attest that it’s not that hard to get a phony driver’s license.

Why would anyone fake a real estate transaction? The answer is as fresh as this morning’s paper, or more precisely, the January 11, 2014, edition of the Broward County (Florida) Sun-Sentinel, in which the arrest of one Robert Tribble was reported. He and his ex-wife are accused of pretending to own 35 foreclosed-on homes, changing the locks and recording falsified title records, then renting the homes to unsuspecting lessees. (Note: Although a devout Star Trekfan, I am a serious legal journalist and will resist the temptation to refer to this case as “The Trouble with Tribbles.”)

Why should we continue to use notaries to put their seal of approval on certain types of transactions? Here are several good reasons:

  • Where the attestation and seal are required by law, they are required by law. That’s not just a truism – the seal or lack of one can have quite an impact if the deal goes south and litigation ensues (no pun intended). The failure to dot the i’s and cross the t’s could give a jury the impression that the entire deal was tainted, especially when they hear from the plaintiff’s expert witness that having a seal is not only a legal requirement but also a “universally recognized ethical obligation,” or some such pronouncement.
  • Notaries watch legal documents being signed in their presence. This means that the parties have three forms of proof to support the document: (1) the signature, (2) the notary’s attestation and seal, and (3) the notary’s log book, which is a separate, admissible business record.
  • It costs a lot more to hire a handwriting expert to prove that a signature is authenticafter the signature than a notary costs before the signature is even wet.
  • Years after the signing, the notarial attestation may be the only reliable evidence to support the authenticity of the signature, especially when the signer and any witnesses have passed away in the interim.

Notaries can be the “ounce of prevention” in many transactions, even when their services are not required by law. They should be viewed as a method of risk management, not an “expense.”

Notary Organizations:

National Association of Notaries: www.nationalnotary.org

American Association of Notaries: www.usnotaries.net