The “we are from the government and are here to help you” people in the Arizona legislature passed a terrible law that became effective in Arizona on July 20, 2011. Arizona Senate Bill 1230 added new and outrageous notary requirements that will affect all documents notarized by an Arizona notary after July 19, 2011. The new law will invalidate tens of thousands of documents notarized by Arizona notaries because of ignorance of the law and simple mistakes.
The new law added the following provisions to Arizona Revised Statutes Section 41-313:
B. Notaries public shall perform the notarial acts prescribed in subsection A of this section only if:
1. The signer is in the presence of the notary at the time of notarization.
2. The signer signs in a language that the notary understands.
3. Subject to subsection D, the signer communicates directly with the notary in a language they both understand or indirectly through a translator who is physically present with the signer and notary at the time of the notarization and communicates directly with the signer and the notary in languages the translator understands.
4. The notarial certificate is worded and completed using only letters, characters and a language that are read, written and understood by the notary public.
C. If a notary attaches a notarial certificate to a document using a separate sheet of paper, the attachment must contain a description of the document that includes at a minimum the title or type of document, the document date, the number of pages of the document and any additional signers other than those named in the notarial certificate.
D. A notary may perform a notarial act on a document that is a translation of a document that is in a language that the notary does not understand only if the person performing the translation signs an affidavit containing an oath or affirmation that the translation is accurate and complete. The notarized translation and affidavit shall be attached to the document and shall contain all of the elements described in subsection C.
Arizona Revised Statutes Section 41-328 was amended by adding the following text:
C. Subject to section 41-320, a notary public shall not perform a notarization on a document if the notary is an officer of any named party, if the notary is a party to the document or if the notary will receive any direct material benefit from the transaction that is evidenced by the notarized document that exceeds in value the fees prescribed pursuant to section 41-316.
Problems Created by Revised ARS Section 41-313
What Does “a notary attaches a notarial certificate to a document” Mean?
The new law is a time bomb for anybody who creates, signs or notarizes documents that are notarized by an Arizona notary. For example, what does “If a notary attaches a notarial certificate to a document using a separate sheet of paper” mean? Consider the following scenarios and if the new language applies to any or all of them:
1. Attorney, document preparer or do-it-yourself person prints a document that has a notary certificate on the same page as the page on which the signer signed.
2. Attorney, document preparer or do-it-yourself person prints a document that has a notary certificate on a page that is not the page on which the signer signed.
3. Attorney, document preparer or do-it-yourself person creates a document that does not contain a notary certificate so the notary prepares his/her notary certificate on a separate piece of paper and attaches it to the end of the document.
4. Attorney, document preparer or do-it-yourself person creates a document that does not contain a notary certificate so the notary prepares his/her notary certificate on a separate piece of paper, but the attorney, document preparer or do-it-yourself person rather than the notary actually attaches the notary certificate to the end of the document.
5. The person who creates the document in scenarios 1 & 2 is also the notary who notarizes the document.
A literal reading of the statute would seem to require compliance with the new law only in the case of scenarios 3 & 5, but we will not know for sure until an Arizona appellate court tells us what this phrase means years from now.
Practical Tip #1: The notary certificate should contain a statement that the notary certificate was or was not attached to the document by the notary.
Practical Tip #2: If the notary is the same person who prepared the document, the document preparer should play it safe and assume that Section 41-313.C will apply and include the required information in the notary certificate.
Mistakes & Omissions in the Notary Certificate
This new notary law is a very bad law because it demands attention to detail and creates many opportunities for the document preparer and the notary to inadvertently invalidate a notarized document. The new law says that when it applies, the notary block must contain “the title or type of document, the document date, the number of pages of the document and any additional signers other than those named in the notarial certificate.” This new require gives the notary a lot of ways to create an incorrect notary certificate.
The new law does not give us any guidance on the legal significance of the notarized document if one or more of the following errors occurs in the notary certificate:
1. The title or type of document stated in the notary certificate is different from the actual title or type of document? For example, what if the title of the document is “Promissory Note,” but the notary certificate refers to a “Note”? What if the name or title is correct, but misspelled?
2. The document date is incorrect? What if the document date is off by one day, a month or the year is incorrect?
3. The number of pages in the document is incorrect? The new law does not tell us how we calculate the number of pages in a document. In counting the number of pages does the notary count a cover page, the pages in a table of contents and pages in schedules or exhibits? The document preparer, the signer and the notary should actually count all of the pages of the document because I do not recommend relying on the page numbers on the last page of the document.
4. The name of one or more additional signers is not spelled correctly.
5. An additional signer’s name is omitted?
Does this law create new liability for lawyers, especially estate planning lawyers whose practice involves many notarized documents? Apparently Arizona lawyers can now be sued years after a document was signed when the client or family is told the notary certificate failed to comply with Section 41-313 and therefore the document is invalid.
Practical Tip #3: In addition to stating how many pages are in the document, the notary certificate should “itemize” page numbers. For example, the notary certificate should say “The