NOTARY ADMINISTRATION

Transcription

1 Last Update: April 28, 2017 NOTARY ADMINISTRATION Contact Information Office of Secretary of State Notary Public Division Pendleton Street, Suite 525 Columbia, SC Website: Notary Rules SCC South Carolina Code of Laws NPRM Notary Public Reference Manual Most Notary rules are in the South Carolina Code of Laws: a. Title 26, Chapter 1, Notaries Public, comprehensively revised by Senate Bill 356, effective June 2, 2014; b. Title 26, Chapter 3, Uniform Recognition of Acknowledgments Act. * * This is the Uniform Recognition of Acknowledgments Act of 1968, adopted virtually intact as Sections through Other directives for Notaries are in the Secretary of State s Notary Public Reference Manual (2014), which is downloadable on the website. NOTARY SEAL A South Carolina Notary is required by law to have a seal of office but is not required to affix it on notarized documents if the Notary s official title (e.g., South Carolina Notary Public ) is affixed instead: A notary public shall have a seal of office, which must be affixed to his notarial acts. He shall indicate below his signature the date of expiration of his commission. The absence of the seal of office or date of expiration does not render his notarial acts invalid if his official title is affixed to it (SCC ). A notary public s official title is not defined in statute, but a notary public s official title would likely need to include the words notary public and South Carolina. For example, your official title could be stated as South Carolina Notary Public. Although a lack of seal or expiration date does not invalidate the notarial act if the notary s official title is attached, it is strongly encouraged that notaries public attach a seal and expiration date (NPRM). Kind Embosser or Inking Stamp: Seal or stamp means a device for affixing on a paper record an image containing a notary s name, the words notary public, and the words State of South Carolina. The device may be in the form of an ink stamp or an embosser (SCC [18]). A notary public may use

2 either a rubber stamp or an embosser seal when performing notarial acts. Both seals and stamps can be purchased and personalized (NPRM). Shape/Size Neither statute nor the Notary Public Reference Manual specifies the size or shape a Notary seal must or should take. Components A South Carolina Notary Public seal or stamp must contain (SCC [18]): 1. Notary s name; 2. Words Notary Public ; 3. Words State of South Carolina ; 4. Optional in seal or stamp: commission expiration date. Commission Expiration Date Below the Notary s signature on each notarial certificate the commission expiration date must appear, but the absence of this date will not affect the validity of the act if the Notary s official title is affixed (SCC ). The statement of the date that the notary s commission expires may appear in the notary s stamp or seal or elsewhere in the notarial certificate (SCC [B][3]). Destruction of Seal If a Notary legally changes his or her name and notifies the Secretary of State of the change, the Notary must destroy or deface all Notary seals bearing the former name so that the seals may not be misused (SCC [A][2]). A notary who resigns his commission shall destroy or deface all notary seals so that they may not be misused (SCC [C]). If a notary dies during the term of commission, the notary s personal representative shall as soon as reasonably practicable, destroy or deface all notary seals so that they may not be misused (SCC ). Documents without Seal Any instrument heretofore or hereafter recorded in this state, which does not have affixed the impressed seal of the authorized officer who administered the oath or affirmation contained therein, shall be valid and constitute notice as though such impressed seal were affixed (SCC ). Whenever it shall appear from the attestation clause or from the other parts of any instrument in writing that it was the intention of the party or parties thereto that such instrument should be a sealed instrument, such instrument shall be construed to be, and shall have the effect of, a sealed instrument, although no seal be actually attached thereto (SCC ). Unauthorized Use of Seal A person who without authority obtains, uses, conceals, defaces, or destroys the seal... of a notary is guilty of a misdemeanor (SCC [D]). Name and Signature A notarial act must be attested by the: (1) signature of the notary, exactly as shown on the notary s commission; [and] (2) legible appearance of the notary s name exactly as shown on the notary s commission. The legible appearance of the notary s name may be ascertained from the notary s typed or

3 printed name near the notary s signature or from elsewhere in the notarial certificate or from the notary s seal if the name is legible (SCC [B][1] and [2]). Notary Signs by Hand in Ink: When notarizing a paper record, a notary shall sign by hand in ink on the notarial certificate. The notary shall comply with the requirements of Section (B)(1) and (2). The notary shall affix the official signature only after the notarial act is performed. The notary may not sign a paper record using the facsimile stamp or an electronic or other printing method; except that a notary with a disability may use a signature stamp that depicts the notary s signature in a clear and legible manner, upon prior approval of the Secretary (SCC ). Example The above typical, actual-size examples of Notary seals are allowed by South Carolina law. Formats other than these may also be permitted. NOTARY POWERS South Carolina Notaries are authorized to perform the following notarial acts (SCC [8], and and NPRM, except as otherwise noted): Take acknowledgments 1 and verifications or proofs 2 ; Administer oaths 3 and affirmations 4 ; Execute attestations and jurats 5 ; Witness signatures;

4 Solemnize marriages 6 (SCC ); Any other acts authorized by law. 1 Acknowledgments: Acknowledgment means a notarial act in which a notary certifies that, at a single time and place, all of the following occurred: (a) an individual appeared in person before the notary and presented a record; (b) the individual was personally known to the notary or identified by the notary through satisfactory evidence; and (c) the individual signed the record while in the physical presence of the notary and while being personally observed signing the record by the notary (SCC [1]). The person taking an acknowledgment shall certify that: (1) The person acknowledging appeared before him and acknowledged he executed the instrument; and (2) The person acknowledging was known to the person taking the acknowledgment or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument (SCC ). 2 Verifications or Proofs: Verification or proof means a notarial act in which a notary certifies that: (a) an individual appeared in person before the notary; (b) the individual was personally known to the notary or identified by the notary through satisfactory evidence; (c) the individual was not a party to or beneficiary of the transaction; and (d) the individual took an oath or gave an affirmation and testified that he is a subscribing witness and as such (i) witnessed the principal who signed the record, or (ii) received the acknowledgment of the principal s signature from the principal who signed the record (SCC [21]). Subscribing witness means a person who signs a record for the purpose of being a witness to the principal s execution of the record or to the principal s acknowledgment of his execution of the record (SCC [20]). If a subscribing witness is unavailable because of death, insanity or absence from the state, there is provision for a proof of execution based on recognition of the handwriting of all parties (SCC ). 3 Oaths: Oath means a notarial act that is legally equivalent to an affirmation and in which a notary certifies that at a single time and place all of the following occurred: (a) an individual appeared in person before the notary; (b) the individual was personally known to the notary or identified by the notary through satisfactory evidence; and (c) the individual made a vow of truthfulness on penalty of perjury while invoking a deity or using a form of the sword swear (SCC [11]). 4 Affirmations: Affirmation means a notarial act which is legally equivalent to an oath and in which a notary certifies that, at a single time and place, all of the following occurred: (a) an individual appeared in person before the notary; (b) the individual was personally known to the notary or identified by the notary through satisfactory evidence; and (c) the individual made a vow of truthfulness on penalty of perjury, based on personal honor and without invoking a deity or using a form of the word swear (SCC [2]). 5 Attestations and Jurats: Attest or attestation means the completion of a certificate by a notary who has performed a notarial act (SCC [3]). Jurat means a notary s certificate evidencing the administration of an oath or affirmation (SCC [6]). The following wording for an oath or affirmation in an affidavit or other sworn document is prescribed by the Notary Public Reference Manual : Do you solemnly swear that the contents of this affidavit (or other document) are known to you and that the information is true and correct, so help you God? (for an oath); Do you solemnly affirm that the contents of this affidavit (or other document) are

5 known to you and that the information is true and correct, under the pains and penalties of perjury? (for an affirmation). 6 Marriage Ceremonies: South Carolina law states that officers authorized to administer oaths in this State are authorized to administer a marriage ceremony in this State. As officers authorized to administer oaths, Notaries thereby are empowered to solemnize nuptials. The Notary Public Reference Manual describes as follows the procedure to follow when notarizing a marriage license: (1) First, the couple applies for a marriage license with a South Carolina Probate Court, which issues 3 copies of the marriage license. (2) The couple and the notary must sign all 3 copies. The bride should sign using her maiden name. (3) The couple keeps one copy and the notary files the other two copies with the Probate Court that issued the license. Sample vows are provided in the Notary Public Reference Manual, or the couple may choose a different format or even write their own vows. Specific questions about the process should be addressed to the county probate office. Identification of Signers A notary may not make or give a notarial certificate unless the notary has either personal knowledge or satisfactory evidence of the identity of the principal and, if applicable, the subscribing witness (SCC [A]). It is a misdemeanor for a Notary to take an acknowledgment or to administer an oath or affirmation without personal knowledge or satisfactory evidence of the identity of the principal (SCC [B][3]). It is also a misdemeanor for a Notary to take a verification or proof without personal knowledge or satisfactory evidence of the identity of the subscribing witness (SCC [B][4]). This type of misdemeanor carries a penalty of a fine of up to $500, imprisonment for up to 30 days or both. If convicted of such a crime, the Notary must forfeit his or her commission and will not be issued another one (SCC [G] and [H]). Personal Knowledge of Identity: Personal knowledge or personally known means familiarity with an individual resulting from interactions with that individual over a period of time sufficient to eliminate any reasonable doubt that the individual has the identity claimed (SCC [14]). Satisfactory Evidence of Identity: Satisfactory evidence means identification of an individual based on either: (a) a current identification document issued by a federal or state government agency bearing a photographic image of the individual s face, signature, and a physical description, except that a current passport without a physical description is acceptable; or (b) the oath or affirmation of a credible witness personally known to the notary public or of two witnesses who present an identification document as described in subitem(a) (SCC [17]). Credible Witness: Credible witness means an individual... whom the notary reasonably believes to be honest and reliable for the purpose of confirming to the notary the identity of another individual and the notary believes is not a party to or beneficiary of the transaction (SCC [5]). Signer Competence and Willingness By making or giving a notarial certificate, regardless of whether it is stated in the certificate, a notary certifies that if the notarial certificate is for an acknowledgment or the administration of an oath or affirmation, the person whose signature was notarized did not appear in the judgment of the notary to be incompetent, lacking in understanding of the nature and consequences of the transaction requiring the

6 notarial act, or to be acting involuntarily, [under] undue duress, or [under] undue influence (SCC [B][2]). Personal Appearance A notary may not perform a notarial act if the principal or subscribing witness is not in the notary s presence at the time the notarial act is performed (SCC [C][1]). Personal appearance and appear in person before a notary means an individual and a notary are in the physical presence of one another so that they may freely see and communicate with one another and exchange records back and forth during the notarization process (SCC [13]). It is a misdemeanor for a South Carolina Notary to take an acknowledgment or to administer an oath or affirmation without the principal appearing in person before the Notary (SCC [B][1]). It is also a misdemeanor for a Notary to take a verification or proof without the subscribing witness appearing in person before the Notary (SCC [B][2]). This type of misdemeanor carries a penalty of a fine of up to $500, imprisonment for up to 30 days or both. If convicted of such a crime, the Notary must forfeit his or her commission and will not be issued another one (SCC [G] and [H]). Signature by Mark A notary may certify the affixation of a signature by mark on a record presented for notarization if: (1) the mark is affixed in the presence of the notary; (2) the notary writes below the mark: Mark affixed by (name of signer by mark) in presence of undersigned notary ; and (3) the notary notarizes the signature by performing an acknowledgment, oath or affirmation, jurat, or verification or proof (SCC [F]). Signature by Proxy Third Party Proxy: If a principal is physically unable to sign or make a mark on a record presented for notarization, that principal may designate another person, who must be a disinterested party, as his designee, to sign on the principal s behalf pursuant to the following procedure: (1) the principal directs the designee to sign the record in the presence of the notary and two witnesses, who are either personally known to the notary or identified by the notary through satisfactory evidence, and who are unaffected by the record; (2) the designee signs the principal s name in the presence of the principal, the notary, and the two witnesses; (3) both witnesses sign their own names to the record near the principal s signature; (4) the notary writes below the principal s signature: Signature affixed by designee in the presence of (names and addresses of principal and witnesses) ; and (5) the notary notarizes the signature through an acknowledgment, oath or affirmation, jurat, or verification or proof (SCC [G]). Notary as Proxy: A notary may sign the name of a principal physically unable to sign or make a mark on a document presented for notarization if: (1) the principal directs the notary to sign the record in the presence of two witnesses unaffected by the record; (2) the notary signs the principal s name in the presence of the principal and the witnesses; (3) both witnesses sign their own names to the record near the principal s signature; (4) the notary writes below the principal s signature: Signature affixed by the notary at the direction of (name of principal unable to sign or make a mark) and also in the presence of (names and addresses of witnesses) ; and (5) the notary notarizes the signature through an acknowledgment, oath or affirmation, jurat, or verification or proof (SCC [H]). Non-English Ads A notary public who is not an attorney licensed to practice law in this State and who advertises his services as a notary public in a language other than English, by radio, television, signs, pamphlets, newspapers, other written communication, or in another manner, shall post or otherwise include with the advertisement the notice set forth in this subsection in English and in the language used for the

7 advertisement. The notice must be of conspicuous size, if in writing, and must state: I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN THE STATE OF SOUTH CAROLINA, AND I MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE. The notice must provide the fees for notarial acts specified in Section If the advertisement is by radio or television, the statement may be modified but must include substantially the same message (SCC [I]). A notary may not use the term notario publico or any equivalent non-english term in any business card, advertisement, notice, or sign (SCC [L]). Presumption Granted to Notarized Wills Legislation enacted in 2013 and effective January 1, 2014 (South Carolina Senate Bill 143), clarifies that, while a last will and testament is not required to be notarized in the state, a will that is notarized is granted a presumption in court that the requirements for execution of the will were satisfied. This means that any party filing the will does not have to prove its due execution in order to enter it into probate. Of course, once the notarized will is entered into probate, the presumption that it was properly executed may be rebutted by convincing evidence to the contrary. Further, if a will is self-proved, it will incorporate an affidavit signed by the testator, the witnesses and a Notary, declaring the due execution of the will, the testamentary capacity of the testator and the absence of undue influence upon the testator. Probate of a self-proved will is freed of the requirement of producing the witnesses to the will to give testimony confirming its proper execution. NOTARY DON TS Disqualifying Interests Personal: A notary may not perform a notarial act if the notary is a signer of, party to, or beneficiary of the record that is to be notarized. A disqualification pursuant to this item does not apply to an employee of a court within the unified judicial system, a notary who is named in a record solely as the trustee in a deed of trust, the drafter of the record, the person to whom a registered document must be mailed or sent after recording, or the attorney for a party to the record, so long as the notary is not also a party to the record individually or in some other representative or fiduciary capacity (SCC [C][3]). Financial: A notary may not perform a notarial act if the notary will receive directly from a transaction connected with the notarial act any commission, fee, advantage, right, title, interest, cash, property, or other consideration exceeding in value the fees specified in Section , other than fees or other consideration paid for services rendered by a licensed attorney, a licensed real estate broker or salesperson, a motor vehicle dealer, or a banker (SCC [C][4]). Attorneys: Any attorney at law who is a notary public may exercise all his powers as a notary, notwithstanding the fact that he may be interested as counsel or attorney at law in a matter with respect to which he may exercise the power, and may probate in any court in this State in which he may be counsel (SCC ). Corporate Officers: A notary public who is a stockholder, director, officer or employee of a corporation may perform a notarial act for that corporation, unless the notary public is individually a party to an instrument or record that is the subject of the notarial act (SCC ).

8 Incomplete Document A notary shall not notarize a signature (1) on a blank or incomplete document; or (2) on a document without notarial certificate wording (SCC [D]). Certify Photograph or Photocopy A notary shall not certify or authenticate a photograph or photocopy (SCC [E]). Although Notaries may not certify a photocopy, the holder of the document may sign an affidavit certifying the authenticity of a photocopy which is then notarized, except when a certified copy is available from an official source (for example, vital records) (NPRM). See Affidavit for Certification of Photocopies (under Notary Certificates ) for notarial certificate wording appropriate for this type of affidavit. Certify Vital Records In the Notary Public Reference Manual, a list of things a notary is not permitted to do includes certify vital records. Certification of vital records must be done by officials in the country, state, or county offices that issue and keep those records. Vital records include birth certificates, marriage licenses, death certificates, divorce decrees, and document of that nature. Preparing Deeds The preparation of deeds, notes, mortgages, and any other documents related to the transfer of property does not fall within the duties or powers of a notary public. A notary public may not offer advice related to the documents involved in the transfer or any other legal document (website, Notaries Public ). False Certification A notary public who, in his official capacity, falsely certifies to affirming, swearing, or acknowledging of a person or his signature to an instrument, affidavit, or writing is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. A notary public convicted under the provisions of this section shall forfeit his commission and shall not be issued another commission (SCC ). A notary is guilty of a misdemeanor if the notary takes an acknowledgment or a verification or proof or administers an oath or affirmation if the notary knows it is false or fraudulent (SCC [B][5]). This type of misdemeanor carries a penalty of a fine of up to $500, imprisonment for up to 30 days or both. If convicted of such a crime, the Notary must forfeit his or her commission and will not be issued another one (SCC [G] and [H]). Non-English Certificates and Signers A notary may not execute a certificate that is not written in the English language. A notary may execute a certificate written in the English language that accompanies a record written in another language, which record may include a translation of the notarial certificate into the other language. In that instance, the notary shall execute only the English language certificate (SCC [M]). Unauthorized Practice of Law A notary public who is not an attorney licensed to practice law in this State may not render a service that constitutes the unauthorized practice of law. A nonattorney notary may not assist another person in drafting, completing, selecting, or understanding a record or transaction requiring a notarial act. This subsection does not prohibit an employee of any court within the unified judiciary system, acting within

9 the scope of his employment, from assisting an individual with filing a document with the court, provided that the assistance does not constitute the unauthorized practice of law (SCC [J]). A person who engages in the unauthorized practice of law is guilty of a felony and, upon conviction, must be fined not more than $5,000 or imprisoned not more than 5 years, or both. This is the penalty per offense (NPRM). False Claiming of Powers A notary may not claim to have powers, qualifications, rights, or privileges that the office of notary does not provide, including the power to counsel on immigration matters (SCC [K]). Use of Notario : A notary may not use the term notario publico or any equivalent non-english term in any business card, advertisement, notice, or sign (SCC [L]). Immigration Assistance Under the Registration of Immigration Assistance Service Act, effective June 17, 2008, the following notarial service is defined as one of 11 separate types of immigration assistance service that may be performed by a nonattorney but that is therefore subject to certain requirements and restrictions: Notarizing signatures on government agency forms if the person performing the service is a notary public commissioned in the State of South Carolina and is lawfully present in the United States (SCC [A][6]). The requirements and restrictions include: 1. Posting signs visible to customers in one s place of business, with separate signs in English and in every other language in which immigration assistance services such as notarization of immigration documents are provided, at least 12 by 17 inches in size, and stating: I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE (SCC [E]). 2. In any advertisement for immigration notarial services in a language other than English (with the exception of a single desk plaque), including the above statement ( I AM NOT AN ATTORNEY ) in a conspicuous size. If an advertisement is by radio or television, the statement may be modified but must include substantially the same information (SCC [F]). 3. Not literally translating from English into another language any document, advertisement, stationery, letterhead, business card, or other comparable written material terms or titles including, but not limited to, notary public, notary, licensed attorney, lawyer, or another term that implies the person is an attorney (SCC [G]). 4. Not representing or advertising oneself in connection with immigration matters through use of titles or credentials, including but not limited to notary public or immigration consultant, that could cause a customer to believe that one holds special skills or can give advice on immigration though a commissioned Notary may use the term Notary Public if accompanied by the statement that the person is not an attorney. The term notary public may not be translated into another language (SCC [H][3]). NOTARY SIGNING AGENTS In regard to the closing of real estate transactions, South Carolina is regarded as an attorney-only state, and, by judicial rule, Notary Signing Agents and other nonattorneys are not permitted by themselves to act at a closing. In its rulings over the years, the South Carolina Supreme Court has identified at least five steps related to a real estate transaction which it labels the practice of law, including: performing a

10 title search, preparing loan documents, presiding at a closing, disbursing loan funds and recording documents. At least two of these functions are performed by Notary Signing Agents and thus, arguably, constitute the unauthorized practice of law in the state. Purchase Transactions In one notable South Carolina Supreme Court case South Carolina v. Buyers Service Company, 357S.E.2d 15 (S.C. 1987) the Court reversed a lower appellate decision permitting a commercial title company to conduct real estate closings, provided that it gave no legal advice. Agreeing in theory with the lower court, the Supreme Court nonetheless stated, there is in practice no way of assuring that lay persons conducting a closing will adhere to the restrictions. One handling a closing might easily be tempted to offer a few words of explanation, however innocent, rather than risk losing a fee for his or her employer. In South Carolina, notaries public are not permitted to conduct real estate or mortgage loan closings without an attorney present. While some states do allow for notaries to conduct a closing without an attorney, the South Carolina Supreme Court has clearly stated that an attorney must conduct all real estate and mortgage loan closings. Mortgage refinancing is also subject to this rule (NPRM). Refinance Transactions In the 2003 Supreme Court Case Doe v. McMaster, 355S.C. 306, 312, 585 S.E.2d 773, 776 (2003), the Supreme Court clarified that a refinance transaction also is the practice of law because it has the same steps as a purchase transaction. In refinancing a real estate mortgage the four steps in the initial purchase situations still exist In sum, refinancing affects identical legal rights of the buyer and Lender as initial financing and protection of these rights is the crux of the practice of law. As with purchase transactions, an attorney must be present and directly involved when refinance loan papers are signed. Loan Modifications In the 2013 Supreme Court Case Crawford v. Central Mortgage Company; Warrington v. The Bank of South Carolina, Op. No (S.C. Sup. Ct. filed June 19, 2013), the Supreme Court took up whether a loan modification for a borrower in default constituted the practice of law. This case is distinguishable from both Buyers Service and McMaster. A loan modification is an adjustment to an existing loan to accommodate borrowers who have defaulted. In contrast, refinancing is the issuance of an entirely new loan, often used by home owners to take advantage of lower interest rates. Thus, the same public policy that requires attorney supervision for home purchases and refinancing does not apply to loan modifications. NOTARY FEES Maximum Fees The maximum fees that may be charged by a South Carolina Notary for performing a notarial act are as follows (SCC [A]): 1. Taking an acknowledgment: $5 per signature; 2. Administering an oath or affirmation without a signature: $5 per person; 3. Executing a jurat: $5 per signature; 4. Witnessing a signature: $5 per signature; 5. Performing a verification of fact: $5 per certificate.

11 Fee Need Not Be Charged Nothing in this chapter compels a notary to charge a fee (SCC [D]). Travel Fees A notary may charge a travel fee when traveling to perform a notarial act if: (1) the notary and the person requesting the notarial act agree upon the travel fee in advance of the travel; and (2) the notary explains to the person requesting the notarial act that the travel fee is both separate from the notarial fee... and is neither specified nor mandated by law (SCC [C]). Schedule of Fees A notary who charges a fee for his notarial services shall display conspicuously in his place of business, or present to each principal outside his place of business, an English language schedule of fees for notarial acts (SCC [B]). NOTARY CERTIFICATES South Carolina has adopted the Uniform Recognition of Acknowledgments Act, including the shortform certificates (SCC ) for: 1. Acknowledgment by individual; 2. Acknowledgment by corporation; 3. Acknowledgment by partnership; 4. Acknowledgment by attorney in fact; 5. Acknowledgment by public officer, trustee or personal representative. The Notary s seal and commission expiration date must be added to each certificate prescribed by SCC , but their omission is not invalidating if the Notary s official title (e.g., South Carolina Notary Public ) is affixed (SCC ). These five short-form certificates do not preclude use of other appropriate forms. Acknowledgment by Individual Short-Form (SCC [1]) State of County of The foregoing instrument was acknowledged before me this (date) by (name of person acknowledging). (Signature of Person Taking Acknowledgment) (Title or Rank) (Seal or Stamp) (Serial Number, if any) Acknowledgment by Corporation Short-Form (SCC [2]) State of County of

12 The foregoing instrument was acknowledged before me this (date) by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging), a (state of incorporation) corporation, on behalf of the corporation. (Signature of Person Taking Acknowledgment) (Title or Rank) (Seal or Stamp) (Serial Number, if any) Acknowledgment by Partner Short-Form (SCC [3]) State of County of The foregoing instrument was acknowledged before me this (date) by (name of acknowledging partner or agent), partner (or agent) on behalf of (name of partnership), a partnership. (Signature of Person Taking Acknowledgment) (Title or Rank) (Seal or Stamp) (Serial Number, if any) Acknowledgment by Attorney in Fact Short-Form (SCC [4]) State of County of The foregoing instrument was acknowledged before my this (date) by (name of attorney in fact) as attorney in fact on behalf of (name of principal). (Signature of Person Taking Acknowledgment) (Title or Rank) (Seal or Stamp) (Serial Number, if any) Acknowledgment by Public Officer, Trustee or Personal Representative Short-Form (SCC [5]) State of County of The foregoing instrument was acknowledged before me this (date) by (name of person and title of position). (Signature of Person Taking Acknowledgment) (Title or Rank) (Seal or Stamp) (Serial Number, if any)

13 In addition to the above certificates, the following forms are permitted for use by South Carolina Notaries Public: Acknowledgment by Grantor or Maker (SCC [C]) South Carolina, County I, (name and title of official taking acknowledgment), do hereby certify that (name of grantor or maker), personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and (where an official seal is required by law) official seal this the day of, 20. (Signature of Officer) (Seal or Stamp, if necessary) Verification or Proof (NPRM) State of South Carolina County I certify that (name of subscribing witness) personally appeared before me this day and certified to me under oath or by affirmation that he or she is not a grantee or beneficiary of the transaction, signed the foregoing document as a subscribing witness, and either [ ] witnessed (name of principal) sign the foregoing document or [ ] witnessed (name of principal) acknowledge his or her signature on the already-signed document. Date: (Signature of Notary) (Notary s printed or typed name) Notary Public for South Carolina My commission expires: (Official Seal) Jurat (NPRM) State of South Carolina County Sworn and subscribed before me on this day of,. (Signature of Notary) (Notary s printed or typed name)

14 Notary Public for South Carolina My commission expires: (Official Seal) Affidavit with Jurat (NPRM) State of South Carolina County (name of affiant) appearing before the undersigned notary and being duly sworn (or affirmed), says that: (Signature of affiant) Sworn to (or affirmed) and subscribed before me this the day of, 20. (Signature of Notary) (Notary s printed or typed name) Notary Public for South Carolina My commission expires: (Official Seal) Affidavit for Certification of Photocopies (NPRM) State of South Carolina County On this day of, 20, I, (document holder), holder of (name of document), consisting of pages, attest that it is a true, exact, complete and unaltered photocopy of the original. To the best of my knowledge and belief, the photocopied document is not a public record, of which certified copies are available from an official source. (Signature of document holder) Sworn to (or affirmed) and subscribed before me this the day of, 20. (Signature of Notary) (Notary s printed or typed name) Notary Public for South Carolina My commission expires: (Official Seal)

15 Recording Requirements Before any deed or other document may be recorded in South Carolina, it must first be witnessed in one of two ways (SCC ): 1. Acknowledgment before a Notary or other officer authorized to administer oaths, in the presence of at least two witnesses, one of whom may be the Notary; 2. Proof of execution before a Notary or other officer authorized to administer oaths, by the affidavit of a subscribing witness. Certificate for Acknowledgment The form of a certificate of acknowledgment used by a person whose authority is recognized under [the Uniform Recognition of Acknowledgments Act, Section 1,] shall be accepted in this State if: 1. The certificate is in a form prescribed by the laws or regulations of this State; 2. The certificate is in a form prescribed by the laws or regulations applicable in the place in which the acknowledgment is taken; or 3. The certificate contains the words acknowledged before me, or their substantial equivalent (SCC ). Certificate for Verification or Proof A notarial certificate for the verification or proof of the signature of a principal by a subscribing witness taken by a Notary is sufficient and must be accepted in South Carolina if it is substantially in a form prescribed by the state s laws, or if it (SCC [E]): 1. Identifies the state and county in which the act occurred; 2. Names the subscribing witness who appeared in person before the Notary; 3. Names the principal whose signature on the document is to be verified or proven; 4. Indicates that the subscribing witness certified to the Notary under oath or affirmation that he or she is not a party to or beneficiary of the transaction, signed the document as a subscribing witness, and either witnessed the principal sign the document or witnessed the principal acknowledge having signed it; 5. States the date of the verification or proof; 6. Contains the signature of the Notary who took the verification or proof; and 7. States the Notary s commission expiration date. Certificate for Oath or Affirmation A notarial certificate for an oath or affirmation taken by a Notary is sufficient and must be accepted in South Carolina if it is substantially in a form prescribed by the state s laws, or if it (SCC [F]): 1. Names the principal who appeared in person before the Notary, unless the name of the principal otherwise is clear from the record itself; 2. Indicates that the principal who appeared in person before the Notary signed the document and certified to the Notary under oath or affirmation as to the truth of the matters stated in the document; 3. States the date of the oath or affirmation; 4. Contains the signature of the Notary who took the oath or affirmation; and 5. States the Notary s commission expiration date. Inclusion of Additional Information The inclusion of additional information in a notarial certificate, including the representative or fiduciary capacity in which a person signed or the means a notary used to identify a principal, does not invalidate an otherwise sufficient notarial certificate (SCC [C]).

16 Out-of-State Certificate Sufficiency: A notarial certificate made in another jurisdiction is sufficient in this State if it is made in accordance with federal law or the laws of the jurisdiction where the notarial certificate was made (SCC [G]). Completion by South Carolina Notaries: On records to be filed, registered, recorded, or delivered in another state or jurisdiction of the United States, a South Carolina notary may complete a notarial certificate that is required in that other state or jurisdiction (SCC [H]). ELECTRONIC NOTARIZATIONS The state of South Carolina has not yet adopted statutes or regulations expressly establishing rules, definitions and procedures for electronic notarization. Uniform Electronic Transactions Act South Carolina has adopted the Uniform Electronic Transactions Act (SCC through ), including the following provision on notarization, thereby recognizing the legal validity of electronic signatures used by Notaries: A law requiring a signature or record to be notarized, acknowledged, verified, or made under oath is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record (SCC ). Further, South Carolina s Notary law defines record to accommodate electronic notarization: Record means information that is inscribed on a tangible medium and called a traditional or paper record. Record also may mean information that is inscribed on a tangible medium or that is stored in an electronic or other medium (SCC [16]). Uniform Real Property Electronic Recording Act South Carolina has adopted the Uniform Real Property Electronic Recording Act or URPERA (SCC through ), including the following provision related to the Notary s seal: A requirement that a document or signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature (SCC [c]). NOTARY RECORDS South Carolina notaries public are not required to keep notary journals. However, it is STRONGLY encouraged that you keep one. It is a good idea to have a record of all notarial acts performed in case questions arise related to the execution of a document (NPRM). Notary Journal Entries The Notary Public Reference Manual offers sample journal entries, which contain the following information: Date and time of notarization Type of notarial act

17 Type of document Date of document Fee charged Address of signer Signature of signer Manner in which signer was identified Special comments Unauthorized Use of Notary Records A person who without authority obtains, uses, conceals, defaces, or destroys the... notarial records of a notary is guilty of a misdemeanor (SCC [D]). AUTHENTICATION OF NOTARIAL ACTS County Clerks Locally, an authenticating certificate for a given Notary may be obtained at the office of the county clerk of court where the Notary presented his or her commission within 15 days after commissioning (SCC ). Secretary of State Authenticating certificates for Notaries, including apostilles, are also issued by the office of South Carolina s Secretary of State. Fees: $2 for each notarized document not each page that is authenticated, whether an apostille or other certificate bearing the Great Seal, payable to South Carolina Secretary of State. Mail or in Person: South Carolina Secretary of State Authentication Office 1205 Pendleton St., Suite 525 Columbia, SC Telephone: Procedure: Mail or deliver in person the original notarized document(s), along with the appropriate fee. An explanatory cover letter indicating the country of destination is needed. A South Carolina Authentications Cover Letter is downloadable on the website for this purpose. Documents may also be sent by UPS or FedEx. An addressed return envelope with postage or a pre-paid shipping label is required. Requirements: In order for the Secretary of State s Office to authenticate a document, it must be signed by a public official whose signature is on file with the Secretary of State, which includes notaries public. Some examples of documents that are brought in for authentication or an Apostille are birth certificates, marriage licenses, school transcripts, etc. (NPRM). Speaking specifically to Notaries, the Secretary adds: It is important that your name be legibly written, typed, or provided in a seal on the document near your signature and that you sign your name as

18 commissioned so that we can accurately verify your status as a notary public and provide the requested certificate. Please also include your seal and expiration date (NPRM). Refusals: The Secretary shall not issue a certificate of authority or an Apostille for a document if the Secretary has cause to believe that the certificate is desired for an unlawful or improper purpose. The Secretary may examine not only the document for which a certificate is requested, but also any documents to which the previous seals or other certifications may have been affixed by other authorities. The Secretary may request any additional information that may be necessary to establish that the requested certificate will serve the interests of justice and is not contrary to public policy, including a certified or notarized English translation of document text in a foreign language (SCC [A]). The Secretary of State s Office may refuse to provide an authentication or Apostille if: (1) it is believed to be requested for an unlawful or improper purpose; (2) the document is in a foreign language and is not accompanied by an English translation; (3) the seal or signature on the document cannot be authenticated by the Secretary or another official; (4) the seal or signature is of an official of another state or country; and (5) the document is a photocopy or reproduction of a seal or signature (NPRM). COMMISSIONING AND ADMINISTRATION Though South Carolina s Notaries are appointed by the Governor, it is the office of the Secretary of State that commissions, regulates and maintains records on them (SCC ). A certified copy of each Notary s oath of office must be recorded in the office of the Secretary (SCC ). Applying for Commission Qualifications: An applicant for a commission as a South Carolina Notary Public must be a registered voter in South Carolina, be able to read and write the English language and submit an application with no significant misstatement or omission of fact (SCC ). Course or Test: No course of instruction or test is required of applicants. However, as a public service the Secretary of State s office regularly conducts Notary seminars around the state, and registration is done through the Secretary s website. In his introduction to the Notary Public Reference Manual, the Secretary stresses that, once commissioned as a notary public, it is the responsibility of the notary public to maintain a level of education appropriate for conducting notarial duties. I encourage you to attend workshops on a yearly basis to remain informed on current issues affecting notaries in order to assist you in performing your duties correctly. Application: The Application/Renewal for Notary Public form may be downloaded from the Secretary of State s website. The top portion of the application for a Notary commission must be completed and its oath then signed in the presence of a Notary who is not the applicant (SCC [3]). It must include the applicant s voter registration number, which may be obtained from the local county voter registration office or the state election commission. Next, the application must be mailed to the office of the local county legislative delegation, addresses for which are listed on the Notary Public Application and Renewal Instructions. The application then must be endorsed by at least one-half of the delegates to the state legislature from the applicant s county, or by the state senator and representative from the district in which the applicant resides (SCC ), or by the chairman or secretary of the county legislative delegation signing on a local legislator s behalf (SCC ). (If this is not possible, it must be forwarded to the South Carolina House of Representatives [P.O. Box 11867, Columbia SC ; telephone (803) ].) To the mailed application the $25 commissioning fee in the form

19 of a check or money order must be attached (SCC ), payable to SC Secretary of State. The county delegation office will then forward the endorsed application and the fee to the Secretary of State s office, which will mail out the commission certificate to any qualifying applicant within a week, with a total processing time of two to twelve weeks, depending on the applicant s county of residence. The commission certificate will be sent to the new Notary, who has 15 days to enroll it with the clerk of court in the county where he or she lives (SCC ). The county recording fee is $5. Nonresidents: Persons who do not reside in South Carolina may not become a Notary in the state. (However, residents of South Carolina who work in North Carolina, Georgia or the District of Columbia may obtain a Notary commission in those jurisdictions.) Reappointment: The renewal process is the same as for the initial application. Applicants simply check Renew at the top of the application form instead of New. Renewal should be started at least eight to twelve weeks prior to commission expiration. Online Search: The South Carolina Secretary of State s Notary Public database allows the public to obtain certain information about Notaries (e.g., commission expiration date). Searches may be conducted by the Notary s first and/or last name and county. Updates are uploaded every 48 hours. Information about commissioned Notaries is also available by telephoning the Notary Public Division at (website, Notary Search ). Changes of Status Within 45 days after the following changes in a Notary s status, the Notary must notify the office of the Secretary of State; such notification must be made on a Change in Status Form and accompanied by a fee of $10 (SCC ): Contact Information Change: For any change in a Notary s telephone number or residence, business or mailing address, notification must be sent to the Secretary of State. A change in contact information will not affect the Notary s current commission expiration date, and there is no need for the Notary to obtain a new seal. However, Notaries whose change of residence address involves a change of county must enroll their commission with the clerk of court in their new county of residence (NPRM). Legal Name Change: A notary with a new name may continue to use the former name in performing notarial acts until the notary receives a confirmation of Notary s Name Change Form from the Secretary. Upon receipt of the confirmation of the Notary s Name Change Form from the Secretary, the notary shall use the new name, and shall destroy or deface all notary seals bearing the former name so that they may not be misused (SCC [A][2]). A name change will not affect the Notary s current commission expiration date, but the Notary must obtain a new seal bearing the new name. Notaries who change their name and receive a new commission also must enroll their new commission with the clerk of court in the county where they live (NPRM). County of Residence Change: A notary who has moved to another county in South Carolina remains commissioned until the current commission expires, is not required to obtain a new seal, and may continue to notarize without changing his seal (SCC [A][3]).