Proof of Execution by Subscribing Witness

Can notaries in FL notarize a signature on a document if the signer is NOT present but the person who brought the document swears the person signed it?

NO! Notaries in FL may NOT notarize the signature of a person on a document by subscribing witness.

Here is what the FL Governor’s Reference Manual for Notaries states:

“Some states, like California, do, in fact, allow such notarizations, but Florida does not. Misunderstanding may also stem from a section in Florida law that provides a method by which instruments concerning real property may be entitled to recording in Florida when the document signer cannot appear before a notary to acknowledge his or her signature. You may hear this procedure referred to as “proof of execution by subscribing witness.”

We recently asked the leading experts in Florida about this issue. The Attorneys’ Title Insurance Fund, Inc. is considered the state’s foremost authority on matters related to the real estate industry.

The following information should clarify any confusion which may exist on the subject.

First, this method is used only for acknowledgments on real estate transactions. Second, this is not an alternative method of notarization. The person whose signature is being notarized must personally appear before the notary at the time of the notarization — without exception. Rather, this provision is a method by which a document can be recorded in Florida.

For example, say a person signed a document related to a real estate transaction but did not acknowledge his signature before a notary public. Later, the document cannot be recorded by the county clerk because it lacks notarization. The problem is further complicated when the document signer cannot be located or is deceased. Florida law provides that one of the subscribing witnesses on the document may “prove” the execution of the document by swearing that the person did actually sign the document. With that sworn statement, the document may then be recorded.

The proof method is not commonly used. In fact, one experienced lawyer at Attorneys’ Title Fund said that she had never seen a real property instrument recorded using this method and that, for insuring purposes, her company would investigate thoroughly before issuing title insurance.

As a notary public, you will probably never encounter this situation. Generally, when there is a problem with the recording of a document, an attorney handles the matter and takes other legal steps to remedy the situation.
Some private companies produce form “certificates of proof.” We prefer the affidavit format instead.
By using an affidavit with a standard jurat, the notary will not be certifying more information than is required of the notary. It is up to the affiant to state the facts and swear to the truthfulness of his or her statement.

Remember then, if a co-worker, family member, or anyone else asks you to notarize another person’s signature based on a sworn statement that he or she saw the person sign the document, JUST SAY NO!!”

In case of doubt, it is better to err on the side of caution and decline to notarize as indicated by the law. The presence requirement must not be trampled over to accommodate requests that go against the law. If those requests come from family members and close friends, politely decline it explaining the law and that you cannot accommodate their request either. People who truly care about you, notaries, will not want you to compromise yourself and how much is at stake just because they asked.

Remember, integrity is doing the right thing even when no one might find out. The notary profession requires us to follow the law, be impartial, and have integrity. Integrity is the basis of any relationship and applies in business as well! Your customers will appreciate your decision, or at least, most of them! If some do not because it inconveniences them since they need to appear before you to acknowledge their signature, then so be it! But you cannot run the risk of causing serious legal issues to others because you relied on the word of someone else and also incurring a lot of legal problems that can be very costly aside from losing your commission and reputation!

FL Governor’s Reference Manual for Notaries – May I notarize a signature without the person being present if another person swears that the person signed the document? p.54

by Alessandra Gomes

On My Way FL Notary S.A.