ISSUES ARISING WITH USA NOTARISATION IN THE UK
Are you a UK resident who has been asked to sign documents in the physical presence of a US notary in the UK by US based title companies,
closing agents, banks, mortgage lenders, lawyers, or other parties based in the USA ?
The issue for UK nationals with the above scenario is that many US-based individuals and businesses have only ever dealt with US transactions.
The laws of most US states recognise the validity of documents notarised abroad by notaries of foreign nations but US entities often insist on requiring their clients to seek a US notary public despite it being clear that a local UK notary public would be the best way forward.
Can a UK notary public notarise documents intended for the United States?
Yes, of course they can! I am an English notary myself and can confirm that notaries appointed in England & Wales, Scotland, and/or Northern Ireland can all notarise documents for the United States. There are sometimes problems arising with US parties with some US banks, mortgage lenders, pension companies, etc., who have little or no experience in dealing with notarisations abroad or the Hague Convention, and will sometimes incorrectly require that only a US notary public can perform such notarisation.
Is it possible to use the US notarisation services of a USA federally appointed notary based in the UK?
Yes, but there are two options addressed below. However, it is not always possible to arrange. The two options are set out below:
(1), US federally appointed notaries who can notarise on U.S. military bases. These notarial services however are only available to members of the US military and their families, and:
(2), US federally appointed notaries do operate in the US embassies and its consulates. Click here if you want to search if there are any available dates available. Often, such appointments may not be available for weeks or months ahead. I understand that it is best to search on such calendar on Fridays. Please note that if witnesses are required for your notarisation, you will need to bring your own witnesses (as well as documentary proof of identity).
Save for notaries in US embassies and such military notaries, there are no other notaries appointed by the US federal government to notarise abroad.
Are there then any US state-appointed notaries who are permitted under US state law to notarise documents outside of the United States?
While the standard domestic US state-appointed notary public is not entitled to notarise documents outside of the notary's US state, the state of Florida, in addition to having its own non-lawyer notaries like all other US states, has also created a unique type of lawyer-notary, known as the "Florida Civil Law Notary" or the "Florida International Notary". The creation of this new type of notary in Florida is based on civil law notaries abroad, and Florida Statute 118 and Florida Statute 695.03. The Florida Civil Law Notary has statutory authority under Florida law to notarise abroad.
Set out below is the relevant part of Florida Statute 695.03:
695.03 Acknowledgment and proof; validation of certain acknowledgments; legalization or authentication before foreign officials.
To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated in one of the following forms:
(1) WITHIN THIS STATE. ...
(2) OUTSIDE THIS STATE BUT WITHIN THE UNITED STATES. ...
(3) OUTSIDE OF THE UNITED STATES OR WITHIN FOREIGN COUNTRIES.—An acknowledgment, an affidavit, an oath, a legalization, an authentication, or a proof taken, administered, or made outside the United States or in a foreign country may be taken, administered, or made by or before a commissioner of deeds appointed by the Governor of this state to act in such country; before a notary public of such foreign country or a civil-law notary of this state or of such foreign country who has an official seal; before an ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d’affaires, consul general, consul, vice consul, consular agent, or other diplomatic or consular officer of the United States appointed to reside in such country; or before a military or naval officer authorized by 10 U.S.C. s. 1044a to perform the duties of notary public, and the certificate of acknowledgment, legalization, authentication, or proof must be under the seal of the officer. A certificate legalizing or authenticating the signature of a person executing an instrument concerning real property and to which a civil-law notary or notary public of that country has affixed her or his official seal is sufficient as an acknowledgment.
It should not be forgotten by US lenders and title insurance companies that the USA is a party to the Hague Convention abolishing the requirement of legalization of foreign public documents and that they can seek an apostille from a foreign nation's "competent Authority" which authenticates such notarisations for purposes of US law. In the United States, the Secretary of State of each state and his or her deputies are usually the state's competent authorities. In the United Kingdom, it is the Foreign and Commonwealth Office which is the relevant competent authority.
In cases where the US-based parties finally understand that there are very few easy options for British clients in seeking the notarisation of a US state-appointed or federally appointed notary, they may give up on seeking a US notary here in the UK, and may then insist that the UK resident arrange an appointment with the US Embassy in London, or even better, to finally agree to use an English notary public local to the client.
Most Americans seem to believe everyone in the UK lives in or around London, when clearly such is not the case. Many of my busy British clients and UK resident American clients throughout the UK who live far from my office are put under great stress in being required in US transactions to travel to London to attend the US embassy for a notarisation. Attending the US embassy for most of my clients takes many hours in travel and attending the appointment. So why are they put through this rather than simply permitted to see a UK notary public local to them?
I don't believe that there is any good reason for US parties to require those seeking a notarisation of US documents to so often be required to travel to the US embassy if they don't live anywhere near London or a consulate actually providing notarisations. It is clear that further to the Hague Convention that the notarisation by a UK notary public is acceptable, and it is best to have the notarisation performed locally. A UK apostille, if required following the notarisation, could easily be ordered from the UK's Foreign & Commonwealth Office and forwarded by the notary or client back to the United States.
If the situation were reversed and an American citizen resident in the USA was purchasing a property in England, would it not seem an unfair burden to require him or her to travel many hours away to meet with a "UK notary" at one of the few UK consulates in the USA. Surely it must be clear to Americans that it is not right to deny British citizens the ability to see a local UK notary public? Notwithstanding this, US entities (especially mortgage lenders) very often insist that UK citizens resident in the UK travel by car or plane for many hours to the US Embassy in London, or the consulates in Edinburgh or Belfast.
The reason is for such a presumption is that there is simply never a problem in finding a notary in the USA.
According to the National Notary Association, there are approximately 4.8 million notaries in the USA. With the USA having a population of approximately 312,631,000 people, this then is equivalent to a ratio of one notary for every 65 people. This is a far greater ratio of notaries to the general public than exists in any other country.
Notaries in the US are generally readily available at a moment's notice and often with no need for an appointment. Many US banks will notarise documents free for their customers. Notaries appointed by the individual US states are normally "public notaries" or "notaries public", are not required to be lawyers, and may only notarise documents when they operate within the border of the relevant US state. By way of example of this jurisdictional limitation, an "American notary" who is a California appointed notary public may not notarise documents when in California, and certainly not from outside the United States.
Most often, US notaries public are employed legal secretaries, paralegals, bank staff, courier or photocopying business staff. For professional notaries, business is only made more difficult to spend the time necessary to carry out their duties as many bank's notaries and others often charge no fees. From this you can see from a US perspective, notaries are expected to be everywhere, to be readily available, to be inexpensive, and not in a position to question US legal requirements, etc.
Unlike the case in the USA in which becoming a notary generally does not require much more than the lack of a criminal conviction and being over the age of 18 years old, and a two-hour exam, in the UK the course is very rigorous and applicants who wish to become notaries public in England & Wales must already have a law degree and/or are a qualified lawyer in the United Kingdom. Despite all aspiring notaries having such a degree or already being a lawyer (normally a solicitor), only one-half of the aspiring notaries made it through the first year of the two year course I took in 2006 to 2008, and only half of them passed the course exams in the second year. A postgraduate diploma in notarial studies is awarded when the course is successfully completed. Only 25% of all the student notaries signing up for the course succeeded in passing the papers and exams and in becoming notaries. All UK notaries either had a law degree already or were qualified solicitors, barristers or other types of lawyers.
2. All UK notaries are lawyers (but not all UK lawyers are notaries).
In seeking to have documents notarised in the United Kingdom for use abroad including the USA, one would normally see a domestic notary public. In the United Kingdom, a notary public is one of a number of different types of qualified lawyers and will generally charge fees commensurate to those of solicitors in the same region and normally will require that appointments be made at which they will seek to establish the appearing party's identity, capacity, authority, willingness to sign the relevant documents or make any required oath or acknowledgment, and seek to ensure that the notarised document will be accepted in the jurisdiction for which it is intended.
England & Wales: In England & Wales, a notary public is a member of an independent third branch (in fact being the oldest branch) of the English legal profession. Contrary to what many believe, the vast majority of solicitors are not notaries. While notaries public in England & Wales are lawyers in their own right and can practise in all areas of English law save court proceedings, most but not all of the very few notaries public in England & Wales tend to also practice as solicitors.
Scotland: In Scotland since 2007 the situation is entirely reversed as most but not all solicitors in Scotland are notaries.
Northern Ireland: Appointment to the office of notary public must be preceded by six years' practice as a solicitor.
3. Beware of relying on using someone in the UK who is not in fact a notary public. Some solicitors in the UK unfortunately may seek to notarise documents mistakenly believing they are entitled to do so.
If you are buying property from a foreign seller, or if you are a title closing agents, pay attention. Despite what might be stated on the website of the Foreign & Commonwealth Office about it being willing to issue an apostille for the signatures of both solicitors and notaries, the signature of a solicitor is only acceptable in Commonwealth nations and does not constitute a notarisation. If you are looking for a notarisation, do not rely on the signature of someone who is not a notary. I have represented UK purchasers of Florida property purchases where Florida title closing agents permitted a UK resident seller to sign a warranty deed in the presence of a solicitor. In one case the solicitor incorrectly maintained to the Florida title closing agents that there were no notaries in England & Wales. He was of course wrong (as well as being a Florida civil law notary, I am also a notary in England & Wales), but more importantly, those deeds which were not in fact notarised under UK law were likewise not deemed notarised under US law and such deeds were invalid.
Are there any US state appointed notaries who are permitted to notarise documents in the United Kingdom?
Only the states of Alabama and Florida have civil law notaries who are lawyers experienced in international matters and who have passed exams to become a member of the National Association of Civil Law Notaries (NACLN). Of the two states, Florida is the only state which (through the Florida Department of State) has appointed its civil law notaries (or Florida International Notaries) to operate outside of its borders and indeed outside the borders of the United States.
What are my options if I am required to see a US notary in the UK?
Some US parties such as US mortgage lenders, or other parties, have unilaterally chosen not to accept mortgage or other documents notarised by a "foreign" notary and may require UK residents to seek a US notary notwithstanding the clear language of the Hague Convention (to which the USA is a party) and regardless of the fact under the laws of most US states a non-US notary's notarisation may often be valid. Where you have been informed you must use a US notary, you should always first ask the party requesting this to check the particular US state's statutory provision relating to the notarisation of documents abroad to determine whether you may in fact use a domestic Notary Public, who will be well-equipped to assist you.
If they however insist on you using a US notary, you normally have few choices. You may be told to attend the US Embassy in London, the US consulate in Edinburgh, the US Embassy in Ireland or in the worst situation to actually fly to the USA just to see a notary there. The notarial services at the US Embassy in London are not always available and the Embassy closed down such services for a number of weeks at least twice last year. The US Embassy in London normally has about 17 or more days of a wait time. Very of If you are completing or "closing" on a US property purchase there may not be time.
As the only Florida civil law notary in the UK, I, Kevin Michael Burke, would be happy to assist in the notarisation of US documents. To the extent that the documents are intended for use in the state of Florida, there is normally no issue with Florida parties however one particular US mortgage lender, BBVA Compass Bank, have changed their policies and have chosen to reject all notarisations from outside the USA, save with exception where they might permit you to see a notary at the US Embassy.
To the extent the documents are to do with notarisation of documents for use in a state other than Florida, you would first need to obtain confirmation from the US entities requiring the documents as to whether they will accept the notarisation of a Florida civil law notary. Please click on notarial authority above for more information as to the grounds on which a Florida civil law notary is authorised by the state of Florida to notarise outside of the USA.
To the extent the US documents are to do with the filing of a W-7 form (seeking an individual tax identification number (ITIN)), I cannot help in my capacity as a Florida civil law notary but can in my capacity as an English notary public. With the W-7 form and proof of exceptions you can fortunately use a domestic notary so long as you obtain an apostille from the Foreign and Commonwealth Office in this instance.
So when are you available?
From offices in Wrington, Bristol, I, Kevin Michael Burke, practice as both a Florida civil law notary and English notary public and would be pleased to assist you in either capacity in your own notarial matters. I am normally available for appointments between 9am and 5pm Monday to Fridays but appointments can be made in advance for later or occasionally on the weekends. So that you do not make a visit to his office when he is not available please telephone (01934 837280) in advance for an appointment.
I normally see clients at my office in Wrington. Where commercial or private clients are unable to come to this office because of schedules, disability or for other special reason, arrangements may be made to see them in their offices or business premises, or at another convenient meeting place. In such cases, the relevant documents may need to be stamped and recorded upon my return to the office following which these shall be returned to you.
If you require US notarial services, we are happy to help. We provide a full range of fast, efficient and friendly notarial services for private and commercial clients.
For further information call us at 01934 837280 or email firstname.lastname@example.org.
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Please note that our services provided as an English notary public are very different from the service we provide as a commissioner of oaths in England & Wales.
Generally, the amount of work performed in acting as a commissioner of oaths in England & Wales in taking an oath is far less complex and time-consuming than is the case where a notarisation is required.
Please note that where you need documents to be recognised and effective abroad, then it is a notarisation which is to be performed. Please note that If you need to send a document to be notarised in Australia or New Zealand or elsewhere in the Commonwealth, please note that the certification of a commissioner for oaths is generally not the equivalent of a notarised document and will likely be rejected in the United Kingdom.
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