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Prepared by Judges' Committee on Notaries Public
Appointed by The Court of Common Pleas of Hamilton County 2005
Published by
The Cincinnati Bar Association
225 E. 6th Street, 2nd Floor,
Cincinnati, Ohio 45202-3209
(513) 651-5118 ext. 223
www.cincybar.org
A commission of a Notary Public is not a license to practice law. A notary is a public officer of the State of Ohio, a position created by the Legislature. To be a notary in the state of Ohio, you must be at least 18 years of age, of good moral character, and be able to verify your identity.
The Secretary of State may appoint and commission as notaries public as many persons as he considers necessary, who are citizens of this state and are of the age of eighteen or over. A notary public shall be appointed and commissioned as a notary public for the state. The Secretary of State may revoke a commission issued to a notary public upon presentation of satisfactory evidence of official misconduct or incapacity.
-Ohio Revised Code, Sec. 147.01
Before the appointment of a notary public is made, the applicant shall produce to the Secretary of State a certificate from a judge or justice of the court of common pleas, court of appeals, or supreme court, that he is of good moral character, a citizen of the county in which he resides, and, if it is the fact, that the applicant is an attorney at law qualified and admitted to practice in this state, and possessed of sufficient qualifications and ability to discharge the duties of the office of notary public. No judge or justice shall issue such certificate until he is satisfied from his personal knowledge that the applicant possesses the qualifications necessary to a proper discharge of the duties of the office, or until the applicant has passed an examination under such rules and regulation as the judge or justice may prescribe. If the applicant is admitted to the practice of law in this state, this fact shall also be certified by the judge or justice in his certification.
-Ohio Revised Code, Sec. 147.02
Each notary public, except an attorney admitted to the practice of law by the Ohio Supreme Court, shall hold office for the term of five years unless the commission is revoked. An attorney admitted to the practice of law in this state by the Ohio Supreme Court shall hold office as a notary public as long as such citizen is a resident of this state or has the attorney's principal place of business or primary practice in this state, is in good standing before the Ohio Supreme Court, and the commission is not revoked. Before entering upon the duties of office, a notary public shall take, and subscribe an oath to be endorsed on the notary public's commission. A notary public who violates the oath of office required by this section shall be removed from office by the court of common pleas of the county in which he resides, upon complaint filed and substantiated in the court, and the court, upon removing a notary public from office, shall certify the removal to the Secretary of State. The person so removed shall be ineligible for reappointment to the office of notary appointment.
-Ohio Revised Code, Sec. 147.03
Before entering upon the discharge of his duties, a notary public shall provide himself with a seal of a notary public. The seal shall consist of the coat of arms of the state within a circle one inch in diameter and shall be surrounded by the words “notary public,” “notarial seal,” or words to that effect, the name of the notary public and the words “State of Ohio.” THE SEAL MAY BE OF EITHER A TYPE THAT WILL STAMP INK ONTO A DOCUMENT OR ONE THAT WILL EMBOSS IT. The name of the notary public may, instead of appearing on the seal, be printed, typewritten, or stamped in legible, printed letters near his signature on each document signed by him. A notary public shall also provide himself with an official register in which shall be recorded a copy of every certificate of protest and copy of note, which seal and record shall be exempt from execution. Upon the death, expiration of term without reappointment, or removal from office of any notary public, his official register shall be deposited in the office of the county recorder of the county in which he resides.
-Ohio Revised Code, Sec. 147.04
Before entering upon the duties of the office of notary public, a notary public shall leave the notary public's commission with the oath endorsed on the commission with the clerk of the court of common pleas of the county in which the notary public resides. The clerk shall record the commission in a book kept for that purpose. The clerk shall endorse on the margin of the record and on the back of the commission the time that the clerk received it for record, and make a proper index to all commissions so recorded. For recording and indexing a commission, the fee of the clerk shall be as provided in division (R) of Section 2303.20 of the Revised Code.
-Ohio Revised Code, Sec. 147.05
Upon application, the clerk of the court of common pleas shall make a certified copy of a notary public commission and the endorsements on the commission, under the seal of the court, the certified copy shall be prima-facie evidence of the matters and facts contained in it. For a certified copy of each notary public commission the clerk shall be entitled to receive a fee of FIVE ($5.00) dollars.
-Ohio Revised Code, Sec. 147.06
A notary public may, throughout the state,
In taking depositions, he shall have the power which is by law vested in judges of county courts to compel the attendance of witnesses and punish them for refusing to testify. Sheriffs and constables are required to serve and return all process issued by notaries public in the taking of depositions.
-Ohio Revised Code, Sec. 147.07
A notary public is entitled to the following fees:
For taking and certifying acknowledgments of deeds, mortgages, liens, powers of attorney, and other instruments of writing, and for taking and certifying depositions, administering oaths, and other official services, the same fees as are allowed by law to clerk of county courts for like services.
-Ohio Revised Code, Sec. 147.08
Under present law, the “fees allowed by law to clerk of county courts for like services” amount to $1.50 for taking and certifying one signature on an affidavit and $2.00 for acknowledging all instruments in writing. THE MAXIMUM FEE THAT A NOTARY CAN CHARGE IS $2.00 PER SIGNATURE ON AN ACKNOWLEDGEMENT AND $1.50 PER SIGNATURE ON AN AFFIDAVIT.
No Notary Public shall do or perform any act as a notary public knowing that his term of office has expired.
-Ohio Revised Code, Sec. 147.10
A person appointed notary public who performs any act as such after expiration of his term of office, knowing that his term has expired, shall forfeit not more than five hundred dollars, to be recovered by an action in the name of the state. Such act shall render such person ineligible for reappointment.
-Ohio Revised Code, Sec. 147.11
A notary public who charges or receives for an act or service done or rendered by the notary public a fee greater than the amount prescribed by law, or who dishonestly or unfaithfully discharges any of his duties as a notary public, shall be removed from office by the court of common pleas of the county in which the notary public resides, upon complaint filed and substantiated in the court. The court shall certify the removal to the Secretary of State. The person so removed shall be ineligible for reappointment to the office of notary public. -Ohio Revised Code, Sec. 147.13
No notary public shall certify to the affidavit of a person without administering the appropriate oath or affirmation to the person. A notary public who violates this section shall be removed from office by the court of common pleas of the county in which a conviction for a violation of this section is had. The court shall certify such removal to the Secretary of State. The person so removed shall be ineligible for reappointment to a period of three years. -Ohio Revised Code, Sec. 147.14
A deed, mortgage, land contract as referred to in division (B)(2) of section 317.08 of the Revised Code, or lease of any interest in real property and a memorandum of trust as described in division (A) if section 5301.255 of the Revised Code shall be signed by the grantor, mortgagor, vendor, grantor, mortgagor, vendor, or lessor in the case of a deed, mortgage, land contract, or lease, or shall be signed by the settlor and trustee in the case of a memorandum of trust. The signing shall be acknowledged by the grantor, mortgagor, vendor, or lessor, or by the settlor and trustee, before a judge or clerk of a court of record in this state, or a county auditor, county engineer, notary public, or mayor, who shall certify the acknowledgment and subscribe the official's name to the certificate of the acknowledgment.
-Ohio Revised Code, Sec. 5301.01
A Notary Public shall have power throughout Ohio:
An oath is a declaration by a person before an office authorized by law, such as a notary public, to take oaths that what he has said or is about to say is true or a promise that he will faithfully perform certain acts. To be a proper and legal oath, the declaration but be substantiated by an appeal to God to witness the sincerity of the statement, accompanied by some outward act demonstrating this appeal, such as raising the right hand or placing it on the Bible.
Example: “Do you solemnly swear that what you are about to say or have said is true, so help you God?”
If the person for religious reasons refuses to take an oath, you are permitted to substitute an affirmation which eliminates the appeal to God.
Example: “Do you solemnly swear (or affirm) that what you have said or about to say is true under pains and penalties of perjury?”
An affidavit is a written statement of facts, the truth of which is sworn to before a person authorized to administer oaths, and followed by an official statement of the person taking the oath that the affidavit was signed and sworn to, or affirmed, in his presence.
Example:
State of Ohio :
County of Hamilton : ss AFFIDAVIT
Before me, a Notary Public, in and for said state, personally appeared John Doe who being by me duly sworn (or affirmed) deposes and says that he is a soldier in the Army of the United States, stationed at Fort Bragg, North Carolina, and further affiant says not.
(Signed) John Doe
Sworn to before me and signed in my presence this day of , 20
(Signed) (Mary Roe)
(Seal) Mary Roe, Notary Public
State of Ohio
My commission expires
Month - Day - Year
In certifying to an affidavit, the Notary must do the following:
Note that the affidavit must be signed in the presence of the Notary, after the oath is administered, and cannot merely be acknowledged in the presence of the Notary. Also note that the Notary must administer the oath of affirmation. Failure to do so can result in the Notary's removal from office.
An acknowledgment is a formal declaration by a person executing a document, made to an official authorized by law to take an acknowledgment (such as a Notary Public), that the person executed the document freely and voluntarily for the purpose set forth in the document.
The law of the State of Ohio requires that signatures to certain legal instruments, in order to be recorded in the County Recorder's Office, must be acknowledged before a person authorized by law to take acknowledgments (as a Notary Public). A person who wishes to acknowledge his/her signature on a document may bring the document to a Notary and then acknowledge to the Notary that the signature is his/her own and that he/she signed the instrument voluntarily and without duress. The Notary must either know the person seeking notarial services or obtain satisfactory evidence that he/she is the person described in, and who executed, the document. The Notary then signs his/her own name certifying that the document was acknowledged in his/her presence.
Example:
State of Ohio :
County of Hamilton : ss
Before me, a Notary Public in and for said State, personally appeared the above named John Doe who acknowledged that he did sign the foregoing instrument and that the same is his free act and deed. In Testimony Whereof, I have hereunto affixed my name and official seal at Cincinnati, this day of , 20
Mary Roe
(Print or Stamp Name)
(Seal)
My commission expires
Month - Day - Year
Naturally, a notary cannot truthfully certify that John Doe appeared before him, unless he is reasonably certain that the person who signed the instrument actually is John Doe. If the signer is not known to the notary, proof of his identity must be presented. This proof is often satisfied by examination of a driver's license or other identification card (preferably one with a picture). Proof may also be satisfied by a third person known to the Notary who introduces John Doe to him. Nor can a notary certify that John Doe “appeared before him” if the instrument is brought to the notary by a third person. It bears repeating that the only way a signature can be acknowledged is in the presence of a notary public who has satisfied himself as to the identity of the person signing the instrument who then takes the acknowledgement and certifies it.
Some notaries are inclined to take this, their most frequently used function, rather lightly. The forget that they are liable, personally, to anyone who suffers damage through their negligence. The courts have found a notary public guilty of negligence who has certified the acknowledgment of a person who has misrepresented himself, when the notary failed to ask of proof of identity. In fact, in Ohio, anyone who with intent to defraud, falsely impersonates another before a Notary Public, is guilty of a felony.
There is a reason why acknowledgments are so important. When a signed instrument is presented in Court as evidence in a case, proof of its execution must be given. This is usually done by securing the person who signed the document as a witness, and asking him on the stand whether or not he executed the instrument. However, papers that have been acknowledged before a Notary Public need not be proven. The notary's certification is considered sufficient to show the authenticity of the signature. This responsibility, then, is no small, unimportant matter.
Some Additional Facts About Acknowledgements
A Notary may never notarize his/her own signature
A Notary cannot take the acknowledgment to an instrument in which he himself has an interest, for instance, if he is party to a deed.
A Notary cannot notarize an instrument when he is out of the physical boundaries of the state. He may not witness the signature and take the acknowledgment in another state, then make the certification in Ohio. All three acts must take place within the limits of his jurisdiction.
A Notary may take an acknowledgment only within the State of Ohio. The document may, however, refer to property or other matters outside the State of Ohio. For example, a Notary may take an acknowledgment on a deed for real estate located in New York if the person signing the deed acknowledges his/her signature before Notary while in the State of Ohio.
A Notary may take the acknowledgment of a relative, even a wife or husband, if he himself has no interest in the transaction.
A Notary may act as a witness to and notarize the same instrument.
A Notary may take the acknowledgment of a person who cannot sign his name. Such person signs the instrument by marking an “X” in the presence of two witnesses, one of whom may be the notary.
Example:
In the presence of: His
Richard Roe (Signed): JOHN X DOE
Mary Roe (Signed): Mark
An acknowledgment is invalid that does not show the official capacity of the person so taking it (Notary Public) and the state in which he is commissioned.
A Notary should remember that he acknowledges the “signature” merely and need not concern himself with the contents of the instrument. This does not mean, however, that a notary may acknowledge a signature on a blank or partly blank piece of paper. He should insist that all blanks are filled in. Blank spaces not used in a legal instrument should have a line in ink drawn though them, so that no one can add to the terms of the instrument after it is signed.
Deeds, Mortgages and Powers of Attorney
A deed or mortgage of real estate is required by law to be signed in the presence of one witness and acknowledged before a notary public, who certifies the acknowledgment on the same sheet on which the instrument is written. This same provision applies to leases for a term of more than three years.
Example:
(After the last of the deed . . . ).
In witness whereof, the grantor has hereunto set his hand and seal.
(Signed)
William Seller
In the presence of:
John Black (Signed)
Richard Roe (Signed)
State of Ohio :
County of Hamilton : ss
I hereby certify that on the day of , 20 , before a Notary Public, in and for said state, personally appeared William Seller, the grantor in the foregoing instrument and acknowledged the signing thereof to be his voluntary act and deed for the uses and purposes therein mentioned.
(Signed) Mary Roe
Commission exp. Month - day - year
Mary Roe, Notary Public
State of Ohio
(Seal)
Only the grantor (or person relinquishing ownership) need sign a deed; the mortgagor (or borrower giving security) need sign the mortgage; and the lessor (or landlord) need sign the lease. Grantees, mortgages and lessees signatures do not appear on these instruments although legally they are “parties” to the instrument. (Lessees in some leases, however, make promise with regard to the property. In these cases they, too, would sign the lease, but their signatures need not be acknowledged.)
If the grantor or mortgagor is married, the husband or wife must also sign and acknowledge the instrument, but need not subscribe the instrument or acknowledge it at the same time as his spouse, or even before the same notary public.
A power of attorney for the conveyance, mortgage or lease of real estate must be signed, witnessed, acknowledged and certified in the same manner as deeds, mortgages and leases for terms of more than three years.
Various Negotiable Instruments Defined.
Bill of Exchange of Draft: A bill of exchange or draft is an unconditional order in writing signed by one person and addressed to another, requiring the person to whom it is addressed to pay on demand or at a fixed date a sum of money to order, or to the bearer.
Example:
$50.00 Cincinnati, Ohio
Month - Day - Year
Five days after date (or after sight) pay to John Doe, or older, Fifty Dollars, value received.
To John Jones Richard Roe
Drafts payable at sight certain date after sight, or at any other date not fixed, must be presented to the drawee for acceptance in order that the date for payment shall be determined. This is called, “presentment for acceptance.”
Checks are simply drafts drawn on a deposit of funds in a bank.
The person making the draft or check is the drawer (Richard Roe); the person to whom it is payable, the payee (John Black). If John Black assigns his interest in the note, he signs his name on the back and becomes an endorser, and the person to whom he assigns it, the endorsee.
Under Ohio Law, when the holder of bill exchange or note presents it properly to the Maker, Drawer or Acceptor on the day it falls due, and the payments is refused, the instrument is said to be “dishonored.” In order to get payment then, from the Drawer or Endorser, a “notice of dishonor” must be given to the Drawer or Endorser.
The reason for the “notice of dishonor” is that the contract made by the Drawer and Endorser holds him liable only if payment or acceptance is refused after presentment for payment, and only if he receives notice of the dishonor. This notice may by given by the holder of the bill or note, or by someone in his behalf, (for instance, a Notary Public.) It may be oral, or in writing, and may be given personally or by mail. If the notice of dishonor is not received by the Drawer or Endorser within one day after the dishonor (if residing in the same place as the Notary Public) he is discharged from all liability on the instrument.
The contract of the Maker and Acceptor is different. It holds them liable even if the bill or note is not presented for payment on the day it falls due. (A drawee is never liable until he has accepted the bill.) In addition to the notice of dishonor, if the instrument were made outside of Ohio, a “protest” of the non-acceptance or non-payment must be made on the day of the dishonor.
A notarial protest is solemn declaration under the hand and seal of a Notary Public stating that he, at a certain time, presented the bill or note for payment or acceptance, the it was refused and that the notice of the dishonor was given to the Drawers and Endorsers. Its purpose is merely to furnish formal evidence of the dishonor of a bill or note by showing that all the necessary requisites have been complied with to hold the Drawers and Endorsers liable on the instrument. It is received in court as prima facie evidence of the facts state therein.
The usual procedure in protests of negotiable instruments is thus: (1) the holder, or one authorized by him, presents the instrument for acceptance or payment and is refused, (2) he gives the instrument to a notary, who again formally makes demand for its payment or acceptance, (3) if payment or acceptance is again refused, the notary gives notice of the dishonor to the Drawers and Endorsers immediately, and (4) fills out the formal Certificate of Protest (a form which may be obtained at any legal stationers) and attaches the bill or note to it. He then records a copy of the Certificate of Protest and the instrument in his official register.
Since the use of a Certificate of Protest is much easier than obtaining evidence of dishonor, the Courts allow a protest form to be used also in cases involving Ohio negotiable instruments. This is allowed, but is not required, as in the case of foreign instruments.
It is impossible in the small guidebook to cover all the statutes dealing with the protests of negotiable instruments. The law describes what constitutes proper presentment, protest, and notice of dishonor. When notary is called upon to protest a negotiable instrument, it is suggested that he acquaint himself with the statutes that are applicable.
If, by marriage or otherwise, a notary changes his or her name, he or she may use the new name, but must indicate the name in which the commission was issued in parenthesis after it. Example: Mary Roe married John Doe. She would sign Mary Doe (Roe).
Your Notary Public commission is valid for 5 years. To determine your expiration date subtract 1 day and add 5 years to the date of commencement printed on your Notary Public certificate issued by the Governor.
When papers are to be used outside of the State, an authentication is usually required. This merely a declaration by the Clerk of Common Pleas Court that the notary is properly commissioned under law at the time of notarizing the instrument. This authentication is forwarded with the papers to the foreign jurisdiction. Any Notary Public wishing to obtain an authentication can contact the Clerk's office at the Hamilton County Court House.
If you move during the 5 year period that your commission is in effect, please notify the Notary clerk at the Cincinnati Bar Association of your new address. In addition to your new address, please include your expiration date. This will ensure you of receiving your renewal notice in sufficient time of your expiration date.
Rule Adopted by the Court of Common Please, Hamilton County, Ohio Rule 22
