A “Notary Public” or simply “Notary” for short, is a public officer that has received legal authority to perform certain functions intended to prevent fraud and forgery. Each state has its own set of laws that govern the duties of notaries. Notaries in Kansas perform five basic functions:
- Take acknowledgments
- Administer oaths and affirmations
- Take a verification upon oath or affirmation
- Witness or attest a signature
- Certify or attest a copy
With real estate transactions, you will most likely encounter a notary for the purposes of witnessing a signature and administering an oath. In witnessing the signing of a document, the notary will verify that you are the person you claim to be, watch you sign a document and then stamp the document with their notarial seal. When administering an oath, the notary will have you raise a hand and swear that the information contained in the document is true and correct. Most people will encounter this scenario in their lives.
But what is the notary actually doing and why do you need them to perform these functions?
With a non-notarized signature, another individual viewing a signed document must identify, prove, or trust that the signature was actually made by the person purporting to sign. If you consider that a deed in a real estate transaction can pass real estate worth hundreds of thousands or even millions of dollars, it is easy to see that the area could be rife with fraud. A Kansas Notary, as stated above, is a public officer that has been vetted by the Kansas Secretary of State and deemed trustworthy to perform the duties of a notary. A notary also must provide a “bond” insuring their duties as a notary.
In witnessing a person sign a document, the notary is creating a presumption that a person is the individual that signed the document. In the law, a presumption means that the burden of proving a fact has shifted to the other side. Therefore, when a signature is notarized, it is presumed, or more likely than not, that the signature is authentic. A person challenging the authenticity of a notarized document has the burden of presenting evidence that is persuasive enough to overcome the presumption in proving that a person did not sign a document.
Additionally, in Kansas, all documents that are filed with a county’s Register of Deeds must be notarized as required by law. So, for most real estate transactions, this includes a deed and mortgage. These are also the documents that are responsible for the conveyance of the interest in real estate, making it easy to understand why such a requirement exists.
In real estate transactions, affidavits (sworn statements of fact) are the most common sworn statements encountered. Usually, these come in the form of affidavits of death, affidavits of equitable interest, or affidavits of debts and liens. Most of the time, they are used to clarify or clear a title concern and are required by a lender or title company as part of a transaction.
As one can see, Notary Publics serve a very important role of preventing fraud and forgery in every real estate transaction. At Tallgrass Title, every one of our team members is a Notary Public and understands the importance of that role and duty that it carries. Should this post present questions regarding the role of a notary in a real estate transaction, feel free to contact our office. We are happy to assist!