Primer on the Rules of Notarial Practice

With the

2 0 0 4 Rules on Notari A.M . No. 02^8-13 (Effective August 1,

JUSTICE REGALADO E. MAAMl Member Supreme Court Sub-Committee on Revision of Rules Governing Notaries Public

A PRIMER ON THE RULES OF NOTARIAL PRACTICE (Supreme Court A.M. No. 0 2 -8 1 3 -S C , Effective August 1, 2 0 0 4 )

PART ONE BASIC CONCEPTS

What are the purposes of the Notarial Law? (a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public. (Sec.2, Rule I) What is the meaning of “acknowledgment”? It refers to an act in which an individual on a single occasion:. (a) appears in person before the notary public and presents an integrally complete instrument or document; (b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. (Sec. 1, Rule II)

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Basic Concepts

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Whit I* a Jurat? "Jurat" rotors to an act in which an individual on a single occasion:

(a) appears In person before the notary public and presents an instrume nr document; \ (b) is personally known to the notary public or identified bythe notary public through competent evidence of identity as defined by these Rules; (u) signs the instrument or document in the presence of the notary; and (rl) Uikos an oath or affirmation before the notary public as to such Instrument or document. (Sec. 6, Rule II)

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What is a Notarial Certificate? Notarial Certificate refers to the part of, or attachment to, a notarized In&lmmont or document that is completed by the notary public, bears the mituty’.s signature and seal, and states the facts attested to by the notary public in a particular notarization as provided for by the rules. (Sec. 8, Rule I!) The Notarial Certificate shall include the following: i) b) oj

d)

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the name of the notary public as exactly indicated in the commission; tho serial number of the commission of the notary public; the words "Notary Public" and the province or city where the notary public is commissioned, the expiration date of the commission, the office address of the notary public; and the* roll of attorney’s number, the professional tax receipj: number and the place and date of issuance thereof, and the IBP membership number. (Sec. 2, Rule VIII)

WhM l* ft notarial register? "Notarial Register” refers to a permanently bound book with fttintofred pages containing a chronological record of notarial acts pffformod by a notary public (Sec. 5, Rule II)

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Basic Concepts

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What is the meaning of official seal? “Official seal” refers to circular metal device, two inches in diameter containing the mark, image o r impression of the name of the city/province where the commission is issued and the word Philippines and the notary public's name on the margin and the roll of attorney’s number on the face thereof, with the words “notary public” across the center, affixed on all papers officially signed by the notary public. (Sec. 13, Rule II)

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Who is a principal? Principal refers to a person appearing before the notary public whose act is subject of the notarization. (Sec. 10, Rule II)

H. What is considered competent evidence of identity? Identification of an. individual based on: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or (b) the oath or affirmation of one credible witness not privy . to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument document or transaction who each personally knows the individual and shows to the notary public documentary identification. (Sec. 12, Rule II)

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PART TWO THE NOTARY PUBLIC ©ITTINO STARTED

h What aro the qualifications to he commissioned Qualifications under the 2004 Rulos On Notarial Practice > > >

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must be a citizen of the Philippines; must be over twenty-one (?1) years of age; mur.t be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued; must be a member of the Philippine Bar in good standing w ith ' clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and must not have been convicted in the first instance of any crime involving moral turpitude. (Sec. 1, Rule III)

notary public?

Qualifications under the Old Law

must be a citizen of the Philippines; must" be over twenty-one (21) years of age; No residency requirement who has been admitted to the practice of law or has completed and passed the examination for the office of justice of the peace or clerk or deputy clerk of court or be a person who has at some time held the office of clerk of court or deputy clerk of court for a period of not less than two years, or a person who had qualified for the office of notary public under the Spanish sovereignty. In chartered cities and provincial capitals where there are two or more lawyers appointed as notaries public, no person other than a lawyer of a person who had qualified to hold the office of notary public

The Notary Public

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under the Spanish sovereignty. In chartered cities and provincial capitals where there are two or more lawyers appointed as notaries public, no person other than a lawyer of a person who had qualified to hold the office of notary public under the Spanish sovereignty shall hold said office. In municipalities or municipal districts wherein no person reside having the qualifications who specified, or having them, refuse to hold such office, judges of first instance may appoint other persons temporarily to exercise the office of the notary public who have the requisite qualification of fitness and morality. (Sec. 232, Rev. Adm. Code) No person shall be appointed as notary public who had been convicted of any crime involving moral turpitude. (Sec. 234, Rev. Adm. Code)

The Notary Public

i What are the procedures to be followed in applying for a notarial fem m ifcsion? 10.1, Form of Petition and Supporting Documents (Sec, 2, Rule 111) What should be stated and included in the petition for notarial commission? Every petition for a notarial commission shall be in writing, verified, and shall include the following:

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(u) a statement containing the petitioner’s personal qualifications, including the petitioner’s date of birth, residence, telephone number, professional tax receipt, roll of attorney's number and IBP membership number; (b) certification of good moral character of the petitioner by at least two (2) executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission; (t:) proof of payment for the filing of the petition as required by these Rules, and (d) three (3) passport-size color photographs with light background taken within thirty (30) days of the application. The photograph should not be retouched. The petitioner shall sign his name at the bottom part of the photographs. (Sec. 2, Rule III) 10.2. Opposition to Petition, if any (Sec. 6, Rule III) When and How the petition for notarial commission be opposed. Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto. The opposition must be received by the Executive Judge before the date of thii summary hearing. (Sec. 6, Rule Ml Opposition to Petition)

The Notary Public

Note: There is no form but it should comply with the rules on pleadings because it is a court document 0.3. Payment of Application Fee (Sec. 3, Rule 111) How much is the application fee for a notarial commission? Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court. Under Rule 141, Sec. 7 (i) of the Rules of Court as amended by A.M.No.04-2-04-SC, effective August 16, 2004, the application fee for commission as notary public is Two Thousand Pesos (P2,000.00). 0.4. Notice of Summary Hearing (Sec. 5, Rule HI) Is notice of summary hearing required? Yes. Under Sec. 5, Rule ill of the 2004 Rules on Notarial practice, the notice of summary hearing shall b6 published in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. The cost of the publication shall be borne by- the petitioner. The notice may include more than one petitioner. Is there a required form for notice of hearing? There is none but the notice shall be substantially in the following form {Sec. 5, Rule 111): NOTICE OF HEARING Notice is hereby given that a summary hearing on the petition for notarial commission of (name of petitioner) shall be held on (date) at (place) at (time). Any person who has any cause or

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The Notary Public

feftsftn to object to the grant of the petition may file a verified written opposition thereto, received by the undersigned before the date of ttiH Mimmaiy hearing.

Executive Judge Summary Hearing on the Petition (Sec. 4, Rule III) When is the petition for a notarial commission granted? The Executive Judge shall conduct a summary hearing on Iho petition and shall grant the same if: (a) the petition is sufficient in form, and substance; (b) the petitioner proves the allegations contained in the petition; and (c) the petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood these Rules. The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner. (Sec. 4, Rule III)

10.ft. Form Notarial Commission (Sec. 7, Rule III) The Executive judge shall issue a formal order signed by him/her and substantially in the following form: (Sec. 7, Rule 111) REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF _ _ _ _ _ _ _ _ t his is to certify that (name of notary public) of (regular place of work oi business) in (city or province) was on this (date) day of

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'The Notary Public month two thousand and (year) commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending the thirty-first day of December (year) and to purchase a notarial seal. Issued this (day) of (month) (year)

Executive Judge 10.6. Form of Certificate of Authorization to Purchase (Sec. 9, Rule III)

Notarial Seal

The Certificate of Authorization to Purchase a Notarial Seal shall substantially be in the following form: (Sec. 9, Rule III)

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF _______ CERTIFICATE OF AUTHORIZATION TO PURCHASE A NOTARIAL SEAL This is to authorize (name of notary public) of (city or province) who was commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a. term ending, the thirty-first of December (year), to purchase a notarial seal. Issued this (day) of (month) (year).'

Executive Judge

10.7 Period of Validity of Certificate of Authorization to Purchase a Notarial Seal (Sec. 8, Rule III)

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The Notary Public

For how long is the “Certificate of Authorization to Purchase a Notarial Seal” valid? Ihe Certificate of Authorization to Purchase a Notarial Seal iR v*ilid for a period of three (3) months from date of issue, unless FixtsHidod by the Executive Judge. (Sec. 8, par. 1, Rule 111) A mark, image or impression of the seal that may be purchased by the notary public pursuant to the Certificate shall be presented to the Executive Judge for approval prior to use.

PERFORMING THE DUTIES OF A NOTARY PUBLIC

11, Jurisdiction and Term (Sec. 11, Rule III) What is the territorial jurisdiction and term of a notarial nommlHKlon? Jurisdiction of Notaries Public under the ?004 Rules On Notarial Practice _ __ A person commissioned as notary public may perform notarial acts ih Bny place within the territorial jurisdiction of the commissioning cour! for a period of two (2) years commencing the first day of Jtimuiry uf the year in which the etinmiibsioning is made, unless tartlet revoked or the notary public has resigned under these N u lti find the Rules of Court. 11, Rule III) ____________

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Jurisdiction of Notaries Public under the Old Law The jurisdiction of a notary public in a province shall be co­ extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co­ extensive with said city. No notary shall possess authority to any notarial act beyond the limits of his jurisdiction. [Sec. 240, Rev. Adm. Code]

The Notary Public

Powers and Limitations of Notaries Public (Sec. 1, Rule IV) Powers of Notaries Public under the 2004 Rules On Notarial Practice (a) A notary public is empowered to perform the following notarial acts: (1) acknowledgments; (2) oaths and affirmations; (3) jurats; (4) signature witnessing; (5) copy certifications; and (6) any other act authorized by these Rules. (b) A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: (1)

the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; (2) both witnesses sign their own names in addition to the thumb or other mark; (3) the notary public writes below the thumb or other mark: "Thumb or Other Mark affixed

Powers of Notaries Public under the Old Law Every notary public shall have power to: (1) administer all oaths and affirmations provided for by law, in all matters incident to his notarial office, and in the execution of affidavits, deposition and other documents requiring an oath; (2) to receive the proof or acknowledgement of all writings relating to commerce or navigation, such as bill of exchange, bottomries, mortgages, and hypothecations of ships, vessels, or boats, charter parties or affreightments, letters of attorney, deeds, mortgages, transfers and assignments of land or buildings, or an interest therein, and such other writings as are commonly proved or acknowledged before notaries; and

'I'he N otary Public

by (norm; of signatory by mark) (3) such other writings as are in thn ptoscnce of (names and commonly proved or mJdmssns of witnesses) and acknowledged before notaries; undersigned notary public"; (4) to act as magistrate in writing «cn1 of affidavits or depositions, and to make declarations and (4) thn notary public notarizes the certify the truth thereof under fiiyiiatiue by thumb or other his seal of office, concerning rmuk through an all matters done by him by acknowledgment, jurat, or virtue of his office. (Sec. 241, signature witnessing. Rev. Adm. Code) (a) A notaiy public is authorized to sign on behalf of a person who is physically unable to sign or make u murk on an instrument or document if: ( I ) tho notary public is directed by the person unable to sign or make a mark to sign on his byhalf; the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses'1 to tho instrument or document; (3) both witnesses sign their own n a m e s; (4) tho notary public writes below his signature: “Signature affixed by notary in presence of (names and addresses of person and two [2] witnesses)1’; and

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The Notary Public

(5)

the notary public notarizes his signature by acknowledgment or jurat, (Sec. 1, Rule iV)

13 Prohibitions (Sec. 2, Rule IV) What are the prohibitions imposed by law on the performance of a notarial commission and what are the exceptions? A notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: (1) public offices, convention halls, and similar places where oaths of office may be administered; (2) public function areas in hotels and similar piaces for the signing of instruments or documents requiring notarization; (:-i) hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and {A) any place where a party to an instrument or document requiring notarization is under detention. (Sec. 2, Rule IV) A person shall not perform a notarial act if the person involved as hicjnatory to the instrument or document. (1) is not in the notary's presence personally at the time of the notarization; and («J) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. (Sec. 2, Rule IV) (A Disqualifications (Sec. 3, Rule IV) When is a notary public disqualified from notarial act?

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performing a

The Notary Public

A nnitiiy public is disqualified from performing a notarial act if he: (g) in [wiity to the instrument or document that is to be notarized; j (b) will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, oxcupl as provided by these Ruies and by law; or (c) it* a spouse, common-law partner, ancestor, descendant, or relative by iilfinity or consanguinity of the principal within the fourth civil degree. (Sec. 3, Rule IV) ' 11, Instances when a Notary Public can legally refuse to notarize documents (Sec. 4, 5 and 6, Rule IV) When can a notary public legally refuse to notarize a document? A notary public shall not perform any notarial act described in these ' Ri i Iok for any person requesting such an act even if he tenders the appropriate fee specified by these Rules if: (fi) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; (b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and (e) in the notary's judgment, the signatory is not acting of his or her own fruo will. (Sec. 4, Rule IV) Improper Instruments or Documents. A notary public shall not rm tifte e : '■ (B) a blank or incomplete instrument or document; or 1 (1) ih instrument or document without appropriate notarial certification, (ie c . (5, Rule IV; false or incomplete information, see Sec 5, Rule IV) 11? P i i i * (Sections 1,2, 3, 4 and 5, Rule V) f l I h i r t a limit on the fee that a notary public may charge?

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The No tan/ Public

I or performing a notarial act, a notary public may charge the maximum fee as prescribed by the Supreme Court unless he waives the fee in whole or in part. (Sec. 1. Rule V)

Under Sec. 12, Rule 141 of the Rules of Court as amended by A.M.No.Q4-2-04-SC, effective August 16, 2004 the following are the prescribed schedule of fees: r , (a) For protests for drafts, bills of exchange, or promissory notes for nonacceptance or non-payment, and for notice thereof, ONE HUNDRED (P100) PESOS; (b) For the registration of such protest and fiiing or safekeeping of the same, ONE HUNDRED (P100) PESOS; (