While signing reams of documents for a real estate closing, some people may wonder if it really matters if a document that requires a notarization is actually notarized in front of a notary. What’s the big deal, anyway?
In the recent case of Allen v. Allen, the Massachusetts Appeals Court invalidated a deed that a notary had signed but that the evidence showed that the grantor had not signed in front of the notary. Instead, Mom conveyed the property to her son and signed the deed without the notary present. Son then took the deed to his lawyer to have it notarized (wonder what was going on there). Then the deed was recorded. Six months later, Mom conveys the property into a trust of which her daughter is co-trustee which was properly acknowledged and recorded. Mom then passes away. Which deed did the court recognize? If you guessed that the son’s deed was no good, you are correct. Even though on its face, the deed appeared valid and it was recorded first, the court held that because the deed “was never actually acknowledged” (that is before a notary), it was no good.
So, when you are involved in a closing and someone presents you with a document that has a notarization and the notary is not there, put down your pen and wait until the notary shows up. You don’t want to go to all that trouble and run the risk that the document is invalid because it was not properly acknowledged.
P.S. Note to out-of-state companies doing “witness only closings:” you do so at your peril. There is a reason Massachusetts courts strictly enforce the conveyancing requirements in this state– it is to prevent the type of shenanigans revealed in Allen and many, many other cases. Please take your practices elsewhere.