Real Estate: Do I Need a Notary?
In some transactions, an acknowledgement by a notary public is one formal prerequisite that must be satisfied in order to have a legally valid and binding agreement. If a document requires an acknowledgement but the parties fail to have it properly notarized, the transaction may be voidable, allowing a party to back out of the deal on the basis of a technicality, or preventing a party from enforcing his, her or its rights under an otherwise lawful transaction. Notary acknowledgements are most commonly needed for documents to be recorded in the county real estate records, but may also be essential or useful in non-recorded documents.
Acknowledgements are especially important with regards to buying and selling residential real estate. Historically, Nebraska law mandated the signature of both spouses to sell or mortgage a home and further required their signatures to be acknowledged by a notary. This was true even though a purchase agreement is not traditionally recorded in the county real estate records. Recently, however, the Nebraska legislature unanimously voted to amend this requirement. Effective August 30, 2015, an acknowledgement by a notary public is no longer necessary on a purchase agreement for a home; however, the requirement for both spouses to sign the purchase agreement remains. It is important to note that the deed of sale (such as a warranty deed) must still be signed by both spouses and notarized.
In Nebraska, electronic notarization may be a reality in the near future. While Nebraska has adopted the Uniform Electronic Transactions Act (“UETA”), which approves of the concept of electronic signatures, Nebraska has not yet enacted legislation governing the specific procedures by which a notary public may complete an electronic acknowledgement. The Electronic Notary Public Act (“ENPA”) is pending in the Nebraska legislature and seeks to establish a process to allow an individual to become an electronic notary public (rather than a traditional notary public) after registration and instruction. The ENPA also describes what actions can be performed by an electronic notary, including acknowledgements, verifications or proofs, and oaths or affirmations. If enacted, the ENPA may provide additional prerequisites to enforceability of an electronic notary above and beyond the requirements provided in UETA.
Notary requirements are a fundamental legal element which should not be overlooked in any real estate transaction, whether commercial or residential. The real estate attorneys at Woods & Aitken LLP can help navigate whether a document must be acknowledged by a notary and may assist you in determining whether electronic notarization is appropriate or permitted in a given transaction.