1.16

Acknowledgments, Jurats and Attestations

1.16.1

Concepts And Distinctions

An acknowledgment is a declaration to a qualified public officer that the declarant executed the instrument on which the declarant's signature appears, and that the instrument is evidence of the declarant's act and deed.

The term also means the official certificate that such a declaration was made. It does not mean that the statements are true, only that the person signed the documents.

1.16.2

Statutory Forms Of Acknowledgments

An acknowledgment may be taken in Texas by:

  • a clerk of a district court;
  • a judge or clerk of a county court; or
  • a notary public.

For a natural person acting in his own right:

STATE OF TEXAS
COUNTY OF_____________________

This instrument was acknowledged before me on (date) by (name or names of person or persons acknowledging).

(Signature of Officer)
(Title of Officer)
(My Commission expires:____________________)

For a natural person as principal acting by attorney-in-fact:

STATE OF TEXAS
COUNTY OF____________________

This instrument was acknowledged before me on (date) by (name of attorney-in-fact) as attorney-in-fact on behalf of (name of principal).

(Signature of Officer)
(Title of Officer)
(My Commission expires:____________________)

For a partnership acting by one or more partners:

STATE OF TEXAS
COUNTY OF____________________

This instrument was acknowledged before me on (date) by (name of acknowledging partner or partners), partner(s)on behalf of (name of partnership), a partnership.

(Signature of Officer)
(Title of Officer)
(My Commission expires:____________________)

For a corporation:

STATE OF TEXAS
COUNTY OF____________________

This instrument was acknowledged before me on (date) by (name of officer), (title of officer) or (name of corporation acknowledging) a (state of incorporation) corporation, on behalf of said corporation.

(Signature of Officer)
(Title of Officer)
(My Commission expires:____________________)

For a public officer, trustee, executor, administrator, guardian, or other representative:

STATE OF TEXAS
COUNTY OF___________________

This instrument was acknowledged before me on (date) by (name of representative) as (title of representative) of (name of entity or person represented).

(Signature of Officer)
(Title of Officer)
(My Commission expires:__________________)

General Statutory Form of Acknowledgment:

THE STATE OF

COUNTY OF

BEFORE ME, ______________________________________________, on this day personally appeared______________________________, known to me [or proved to me on the oath of _______________, or through _______________________ (description of identity card or other document)] to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that _______executed the same for the purposes and consideration therein expressed.

Given under my hand and seal of office this _____day of __________.

________________________________________

NOTARY PUBLIC

1.16.3

Jurat

A jurat is a certificate executed by a qualified public officer before whom an oath is made, which certifies that the affiant swore, or affirmed before the officer to the truth of the statements made, and signed in the officer's presence.

The certificate of jurat serves two distinct purposes:

  • To witness the signature of the affiant.
  • To serve as evidence that the affiant was sworn. It does not mean that the statements were true. The document must so state; not just the jurat or the acknowledgement.

Form of a Jurat:

Subscribed and sworn to before me this ______ day of _________ , 19 ____ .

__________________________
Signature of Notary Public

(Seal) My Commission expires on _______________

Generally, because the log for acknowledgment provides that the signer was sworn in by the notary, a jurat and an acknowledgment are interchangeable. However most title companies and most county clerks prefer the acknowledgment.

1.16.4

Attestation

An attestation is the act of witnessing a person's signing of an instrument by a subscribing witness. The witness signs at the end of the attestation, in which the witness certifies that the instrument was executed in the witness's presence.

Texas Government Code Section 406.016 and Texas Civil Practices and Remedies Code Section 121.006 provide for the attestation of various instruments, either by a notary to identify as valid the signature of another public official or corporate officers to the instrument in question. Corporate officers have the power to attest signature of members of that corporation under general law.

Form of attestation in a corporation instrument:

ABC, a ______ corporation

By _______________________
(President)

[Corporate Seal]

Attested: _________________
(Secretary)

1.16.5

Necessity And Purpose

An acknowledgment is not an essential part of a deed or other instrument, and that, as between the parties and persons having actual notice of it, an acknowledgment is not necessary to the validity of the deed or instrument.

The main purpose in acknowledging an instrument is to entitle it (except as above stated) to be recorded and thus impart notice of its contents.

Underwriting Standard

The Company requires that all legal instruments upon which it must rely in order to insure title be properly acknowledged by the maker thereof, unless the age of the instrument renders the acknowledgment unnecessary under local title insurance standards, court decisions, or statutes.

1.16.6

Instruments That May Be Acknowledged

 In general, every private writing except wills and testaments may be acknowledged.

1.16.7

Persons Who May Take Acknowledgments - Disqualifications

Any notary public or officer having any financial interest in the transaction is not qualified to take the acknowledgment and any acknowledgment so taken is void.

Nevertheless, an employee or officer of a corporation may take an acknowledgment provided that they are not personally interested in the transaction and do not execute the instrument as an officer of the corporation See Tex. Fin. Code Sections 59.003 & 199.002

1.16.8

Venue

The venue of the certificate of acknowledgment should include both the state and county where the acknowledgment is taken:

"State of __________ "

"County of __________ "

The venue needs to be stated in the certificate in order to show that the acknowledgment was taken within the physical area in which the notary public or officer is empowered to operate.

In Texas, notaries have statewide authority.

1.16.9

The Declarant

  • Must appear personally before the person taking the acknowledgment;
  • Must furnish proof of being the person described in and who executed the instrument or be personally known by the notary and;
  • Must not be acting under duress and be known or believed to be of sound mind.

1.16.10

The Certificate Of Acknowledgment

The contents of the certificate of acknowledgment are regulated by state law, local practices, the Uniform Recognition of Acknowledgments Act, the Uniform Acknowledgment Act, or the Uniform Law on Notarial Acts (in those states where adopted).

A certificate of acknowledgment usually takes the following form:

  • Venue.
  • Date.
  • Official character of the person taking the acknowledgment.
  • The fact that the person whose acknowledgment is taken appeared before the notary public or officer and acknowledged execution.
  • The fact that the person whose acknowledgment is taken, is known to the notary public or officer taking the acknowledgment, or that satisfactory proof of that fact is being furnished.
  • Signature of the notary public or officer.
  • The seal of the notary public or officer.
  • Date of the expiration of the commission of the notary public or officer, or statement relative to the fact that the commission is still in effect.
  • Marital status of the declarant.
  • Statement as to the authority of the declarant to execute the instrument when the declarant does not act in the declarant's individual capacity (partner, administrator, trustee, etc.).

1.16.11

Foreign Acknowledgment

A foreign acknowledgment is an acknowledgment taken outside Texas.

This type of acknowledgment is valid as long as it conforms to the laws of the state or county where the acknowledgment is taken, and its acceptance is authorized by the laws of the state where the land lies.

An acknowledgment may be taken outside of Texas but within the United States or its territories, by:

  • a clerk of a court of record having a seal;
  • a commissioner of deeds appointed under the laws of that state; or
  • a notary public.

If the acknowledgment does not have a notary seal, and the state in which the acknowledgment was taken does not require a seal, then the necessity for a seal is waived. Your county clerk will have a list of states that do not require notary seals.

An acknowledgment may be taken outside the United States or its territories by:

  • a minister, commissioner, or charge d'affaires of the United States who is a resident of and is accredited in the country where the acknowledgment or proof is taken;
  • a consul-general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States who is a resident of the country where the acknowledgment or proof is taken; or
  • a notary public.

You may assume that an acknowledgment signed by a U.S. governmental official is appropriately appointed and accredited.

An acknowledgment of a member of the armed forces, a member of the armed forces auxiliary or a member's spouse may be taken by a commissioned officer of the United States Armed Forces or United States Armed Forces Auxiliary.

In some transactions, a party to the transaction is in another country and needs to get a document notarized. If a U.S. Embassy or U.S. Consulate notary is unavailable, the party may obtain a foreign acknowledgement by using an Apostille Form (below). We will accept this form executed by a foreign notary from any country that is a member of the Hague Convention.  Most major countries are signatories to the Hague Convention.  If you have doubts, call a Texas Underwriter or check the Hague Convention Website under conventions (http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=41)

 

41-326. Apostille

An apostille prescribed by the Hague convention, as cited in 28 United States Code in annotations to rule 44 of the Federal Rules of Civil Procedure, shall be in the form of a square with sides at least nine centimeters long and shall contain exactly the following wording:

Apostille

(Convention de la haye du 5 Octobre 1961)

1. Country: ___________________________________________

This public document

2. Has been signed by ___________________________________

3. Acting in the capacity of ___________________________

4. Bears the seal/stamp of ______________________________

Certified

5. At ____________________

6. The ____________________

7. By ___________________________________________________

8. No. _________________________________________________

9. Seal/stamp

10. Signature _______________________

1.16.12

Defective Certificate - Corrections

 

Acknowledgments by unauthorized persons, acknowledgments by officers outside their jurisdictions of authority, acknowledgments by officers interested in the property conveyed, acknowledgments by deputy officers in the name of the principal.  

A valid acknowledgment is essential for proper recording; that is, if the acknowledgment is void, the instrument although recorded is treated as an unrecorded instrument. 

After a document improperly recorded has been of record more than two (2) years, the defect is cured by the passage of time.  See Sec. 16.033 TX. Civ. Prac. & Rem. Code.

In Texas an acknowledgment is defective if it is dated before the date the document is signed.  This of course is logical since you can't acknowledge you singed something until you have signed it.  This request can be avoided simply by signing the document on the effective date which can be before or after the acknowledgment.


A notary public or officer cannot amend, modify, or correct the certificate of acknowledgment after it has been delivered. A new acknowledgment is necessary to entitle the instrument to be recorded or re-recorded. This can be easily done if the rights of third parties are not prejudiced.
 

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