ACKNOWLEDGEMENT LAW: A COMPENDIUM
| Jurisdiction | United States |
Aaron D. Bieber
Ryan Paul Campbell
Wes Hobbs
Aaron L. Myers
Ed. John J. Clennan
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| I. | Introduction |
| II. | Requirements of Acknowledgments |
| III. | Persons Authorized to Take Acknowledgments |
| a. California | |
| b. Colorado | |
| c. New Mexico | |
| d. North Dakota | |
| e. Texas | |
| f. Utah | |
| g. Wyoming | |
| IV. | Special Considerations |
| V. | Errors in Acknowledgment |
| VI. | Admissibility of Instruments |
| VII. | Forms |
| VIII. | Conclusion |
I. Introduction
The law of acknowledgments is an overlooked but important area of land and energy law. An acknowledgment is a formal declaration made in the presence of an officer, such as a notary public, by someone who signs a document and confirms that the signature is authentic.1 In most states, the officer confirms that (1) he or she personally knows the document signer or has established the signer's identity through satisfactory evidence, (2) the signer appeared before the officer on the date and in the place indicated, and (3) the signer acknowledged signing the document freely.2 In other words, an acknowledgment is the method of authenticating an instrument by showing it was the act of the person executing it.3
Instruments are acknowledged for a variety of reasons. Instruments directly affecting an interest in land must be properly acknowledged in order to be recorded.4 In some states, constructive notice of a conveyance of real property is not imparted unless the conveyance has been properly
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acknowledged and recorded in the property records of the county in which the land is located.5 Additionally, the proper acknowledgment of an instrument may greatly aid trial attorneys litigating the execution and validity of instruments such as deeds, oil and gas leases, deeds of trusts and mortgages, or other related instruments.6 Usually, a properly acknowledged instrument is admissible into evidence without further proof as to its execution.7
An acknowledgment is usually not an essential element of a conveyance insofar as the parties to an instrument are concerned. The exception to this general rule is in cases involving ancient documents wherein a married woman was a grantor. For the most part, unacknowledged instruments are valid as between parties to the instruments, their heirs, subsequent purchasers with knowledge, or subsequent owners who give no consideration.8
If the conveyance or mortgage is not properly acknowledged and filed for record however, such conveyances and mortgages are void as to subsequent purchasers for value without notice and as to subsequent creditors.9
If a recorded instrument contains a defective acknowledgment, it may not constitute constructive notice to creditors and subsequent purchasers if the instrument shows on its face that it was defectively acknowledged (or if the certificate is otherwise fatally defective).10
Generally, the law of the state in which the land is located controls in the case of a conflict concerning which state's acknowledgment certificate form is to be used.11 Thus, a California limited partnership or Texas
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corporation conveying land located in the state of Colorado must acknowledge the conveyance in accordance with Colorado law, not the laws of California or Texas.
Federal statutes also authorize certain officials to take acknowledgments in certain limited circumstances.12
II. Requirements of Acknowledgments
Though the forms of individual states may vary, in general, any deed or other instrument relating to or affecting title to real property acknowledged before a statutorily authorized official should contain the following:13
1. a statement of the state and county where the acknowledgment is taken;
2. a statement that the foregoing instrument is acknowledged before the authorized official, with the day, month, and year the acknowledgment is taken;
3. the person or persons whose acknowledgment is being taken;
4. if by person acting in representative or official capacity or as attorney-in-fact, the name of the person as executor, attorney-in-fact, or other capacity or description; and
5. if by an officer of a corporation, the name of such officer or officers as the president or other officers of such corporation, and the name of such corporation.
If an acknowledgment is taken by a notary public, the certificate of acknowledgment should contain the following:
1. at the time of notarization, a notary's official signature (or in the case of an electronic record, a notary public shall affix his or her electronic signature);
2. under or near such notary's official signature, a rubber stamp or a clearly and legibly embossed notary's official seal (the official notary seal shall contain only the outline of the seal, the name of the notary, exactly as such notary writes his or her official signature, words identifying the state that issued the seal, i.e.,
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"STATE OF COLORADO," and the words "NOTARY PUBLIC"); and
3. under or near such notary's official signature, a notary public shall write or stamp "my commission expires [ commission expiration date]."
Generally, no officer authorized to take an acknowledgment of instruments affecting title to real property may do so unless the person making the acknowledgment is personally known to the officer to be the identical person he represents himself to be or is proved to be such person by at least one credible person known to the officer.14
III. Persons Authorized to Take Acknowledgments
a. California
Acknowledgments for deeds and other instruments concerning the conveyance of real estate may only be taken by statutorily authorized persons.15 If the conveyance is acknowledged within the state of California, the following are authorized to take acknowledgments of the documents associated with the conveyance: (1) a county clerk; (2) the clerk of any superior court of record; (3) a retired judge of a municipal or justice court; (4) a district attorney; (5) a clerk of a board of supervisors; (6) a city clerk; (7) a county counsel; (8) a city attorney; (9) Secretary of the Senate; (10) Chief Clerk of the Assembly; (11) any county judge; or (12) any notary public.16
If an instrument is acknowledged outside of the state of California, but inside the United States, its acknowledgment may be made before any of the following public officials: (1) any justice, judge, or clerk of any court of record of the United States; (2) a notary public; or (3) any other officer of the state able to legally take an acknowledgment in the state where the acknowledgment was taken.17
Finally, the proof of acknowledgment of an instrument may be made outside the United States by any one of the following: (1) a minister or
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commissioner of the United States; (2) a consul, vice consul, or consular agent of the United States; (3) a judge of a court of record of the country where the acknowledgment is made; (4) commissioners appointed by the Governor or Secretary of state; or (5) a notary public.18
b. Colorado
In Colorado, acknowledgments are governed by the Uniform Recognition of Acknowledgments Act ("URAA").19 Authorized persons may take the acknowledgment of deeds and associated instruments for the conveyance of real property.20 If the conveyance is acknowledged within the state of Colorado, the following are authorized to take the acknowledgment of the documents associated with the conveyance:
(a) any judge of any court of record, the clerk of any such court of record, or the deputy of any such clerk, such judge, clerk, or deputy clerk certifying such acknowledgment under the seal of such court; 21
(b) the clerk and recorder of any county, or his deputy, such clerk or deputy clerk certifying the same under the seal of such county; 22
(c) any notary public, certifying the same under his notarial seal; 23 or
(d) prior to the second Tuesday in January, 1965, any justice of the peace within his county. 24
If the conveyance is acknowledged outside of the state of Colorado, but within the United States or any territory thereof, the following officials are authorized to take the acknowledgment of the instruments associated with a conveyance of real estate:
(a) the secretary of any such state or territory, certifying such acknowledgment under the seal of such state or territory; 25
(b) the clerk of any court of record of such state or territory, or of the United States within such state or territory, having a seal, such clerk certifying the acknowledgment under the seal of such court; 26
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(c) any notary public of such state or territory, certifying the same under his notarial seal; 27
(d) any commissioner of deeds for any such foreign state or territory appointed under the laws of this state, certifying such acknowledgment under his hand and official seal; 28 or
(e) any other officer authorized by the laws of any such state or territory to take and certify such acknowledgment if there is affixed to the certificate of such officer, other than those above enumerated, a certificate by the clerk of some court of record of the county, city, or district, wherein such officer resides, under the seal of such court, that the person certifying such acknowledgment is the officer he assumes to be, that he has the authority by the laws of such state or territory to take and certify such acknowledgment, and that the signature of such officer to the certificate of acknowledgment is the true signature of such officer. 29
Colorado statute also provides for who may take an acknowledgment out of the state and within any colony, island possession, or bailiwick belonging to or under the...
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