Issues arising in the United Kingdom
in the notarisation of documents intended
for use in the USA
Have you been told that you need to have a deed or power of attorney or other document notarised for use in the USA?
Are you looking to buy or sell a holiday home in Florida or elsewhere in the USA and been told that you need to sign the closing documents before a US notary public?
Are US title companies, lawyers, courts, banks, mortgage lenders, or other parties in the USA insisting that you see a US notary public here in the UK?
Have you been required by a US bank, a title closing agent, a US-based business, or other US person or business entity to sign documents in the presence of a "US notary public" here in the United Kingdom?
Even now in November 2020, many US-based individuals and businesses only ever deal with US transactions and parties. Many US-based individuals and businesses still only seem to be able to deal with US banks, US transactions, and US parties. Unfortunately, such Americans often have little if any knowledge of the world outside of the USA. As a US lawyer now resident in the United Kingdom since 1999, I am still surprised when my UK clients are asked by US parties to go to their "local US notary" in the UK. Some of such US parties also tell my clients that they can find these US notaries at their local US bank in the UK.
So, what about Federally appointed notaries or US military notaries based in the UK?
The US federal government appoints two types of notaries to act outside of the USA. These include:
(1), those federally appointed US notaries appointed to notarise on U.S. military bases. These can only notarise documents for members of the US military and their families), and
(2), those US federally appointed notaries appointed to operate in US embassies and consulates. There remains a problem with US Embassy notarisation as appointments may need to be booked weeks or months in advance.
such may not be readily available for appointments as addressed below.
Aside from the above two types of "federally appointed" notary, that only leaves
3), notaries appointed by the individual US states.
For most people, the term "American notary" would mean a non-lawyer notary public appointed by one of the US states. Generally, in the USA anyone may apply for and obtain commission as a notary public of a US state who is at least 18 years of age, and a resident of that US state. They may be required to have obtained a public bond from an insurance company, and possibly taken some type of notary education course.
(4) UK notaries which include those appointed in England & Wales, those appointed in Scotland, and those appointed in Northern Ireland.
In cases where the US-based party understands that there are very few options in seeking the notarisation of a US state-appointed or federally appointed notary, they may give up on seeking a US state-appointed notary (the vast majority of notaries in the USA) and simply insist that the UK resident arrange an appointment with the US Embassy in London. Unfortunately, it would appear that most Americans believe everyone in the UK lives in or just around London.
Many of my busy British clients and UK resident American clients throughout the UK are in any event put through great stress in having to travel to London to attend the US embassy for a notarisation. Attending the US embassy for most of my clients is not at all a pleasant experience. So why are they put through this rather than simply see a UK notary public local to them? I don't believe that there is any good reason in fact for US parties to require those seeking a notarisation to travel to the US embassy as it is clear that further to the applicable Hague Convention that a UK notarisation is acceptable. An apostille could easily be obtained on seeing a UK notary public.
If the situation were reversed, would it not seem an unfair burden to an American citizen resident in the USA to require him or her to travel many hours away to meet with a "British notary" or "UK notary" at one of the few UK consulates in the USA. Surely then they themselves would then complain as to why they could not simply see a local state appointed American notary? 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.
Generally however, this problem with making so many UK residents travel to the US embassy just comes down to the fact that many see little if any need to change the standard domestic procedures and forms they use everyday for US residents just because someone happens to be outside the USA.
Most of the time it comes down to one of the following reasons:
1. US-based parties incorrectly presume that foreign notaries may not be used.
US-based parties (mainly here being some US mortgage lenders) often do not know or have not ever researched the relevant law of their own individual US state to determine whether in fact such laws do in fact provide for recognition of notarial acts performed abroad and set out what parties or persons are acceptable to that state for notarisations abroad. In fact, most, if not all US states in fact recognise the validity of documents notarised abroad by foreign notaries.
The laws of states in the United States often make specific provision for the recognition of documents executed outside the United States. In addition to this, many states have enacted legislation similar to the Uniform Recognition of Acknowledgements Act 1968 (Alaska, Arizona, Colorado, Connecticut, Illinois, Kentucky, Maine, Michigan, Virgin Islands [US territory]), the Uniform Acknowledgments Act 1939 (amended 1960) (Arkansas, Connecticut, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, Virginia, West Virginia), the Uniform Acknowledgments Act 1892 (Louisiana, Massachusetts), Uniform Foreign Acknowledgments Act (Louisiana), and/or the Uniform Law on Notarials 1982 (Delaware, District of Columbia, Iowa, Kansas, Minnesota, Montana, Nevada, New Mexico, Oklahoma, Oregon, Wisconsin) which recognize the admissibility of documents executed outside the United States.
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 the 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.
What is the position of notaries in the United Kingdom?
1. There are far less notaries in the UK than in the USA. According to The Notaries Society, there are about 850 notaries in England and Wales. With England & Wales having a population of approximately 55,209,000 people, this then is equivalent to a ratio of one notary for every 61,343 people (as opposed to the ratio of one notary for every 65 people in the USA).
2. 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.
3. US-based parties presume if you call a "local US bank" or a notary's office you will easily be able to make a cheap and prompt appointment.
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 New York, 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. Some US notaries public practice solely as professional notaries, but this is extremely difficult as they are statutorily bound by their states to charge extremely low fees. 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 email@example.com.
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