Notary or Not-So-Real? Perils of Falling for Fake Notary Services

Ever found yourself in the clutches of a faux “Notary Public” or stumbled upon a business masquerading as offering Notarial Services, only to discover it’s all smoke and mirrors? Imagine the gut-wrenching moment when you realize your precious document’s notarization is about as valid as a soggy napkin, courtesy of the fake Notary Public. It’s like falling for the prank of the century, except this one comes with a side of legal chaos and can lead to some liabilities!

Recently, three individuals were apprehended by law enforcement authorities in an entrapment operation for providing counterfeit notarial services. (Read more here) This concerning incident underscores the growing prevalence of fake notary public services, raising significant concerns and uncertainties. It prompts us to ponder whether legitimate notarization holds intrinsic value for our documents or if it merely serves as a superficial stamp. Moreover, distinguishing between authentic and fraudulent notaries becomes crucial. Additionally, when presented with a notarized document, ensuring its authentication by a genuine notary public becomes a pertinent issue. These pertinent queries have surfaced in light of widespread reports of fraudulent practices among notary publics in Pampanga. Alarmingly, some establishments even offer notarization services sans the presence of a qualified lawyer, further complicating the landscape.

What does it entail when someone requests, “Attorney, pa-notarize naman!”? According to the 2004 Rules on Notarial Practice, a “Notarial Act” or “Notarization” encompasses any action that a notary public is authorized to undertake under said rules. A “Notary Public” is an individual commissioned to execute official acts, including acknowledgment, affirmation oath, jurat, signature witnessing, and copy certifications.

In essence, notarization is a legal procedure that bestows credibility and authenticity upon a document by requiring its signing in the presence of a notary public. This article delves into the circumstances mandating notarization under Philippine law, along with its implications and any exceptions

Legal Significance of Notarization

The Supreme Court in Tigno v. Sps. Aquino said that Notarization transforms a private document into a public document, and renders it admissible in court without further proof of its authenticity. Notarization gives the document the presumption of regularity and authenticity. The presumption merely gives the document a presumption that it was created properly and in the usual manner and that the facts stated in the documents are presumed to be true. This presumption of regularity may only be overcome by clear and convincing evidence.

When Notarization is required

Not all documents need to be notarized for them to be valid. Documents that requires notarization in order to be valid are:

1. Notarial Prohibitions – Instrument that is required in order to acquire negative easement. Negative easement cannot be acquired if no instrument acknowledged before a notary public was made.
2. Donation of Real Property – The Civil Code requires donation of real property to be made in a public document, and its acceptance to be also made in a public document for such donation to be valid. Otherwise, no donation is deemed to have been made.
3. Notarial Wills – One of the crucial requirements in order for a Notarial Will to be valid is that it should be duly acknowledged before a Notary Public. A will, that is not completely handwritten and dated, will not be completely valid if not duly notarized.
4. Repudiation of Inheritance – Repudiation of inheritance, if not made by petition before a court, must be made in a public instrument in order to be valid. Otherwise, no valid repudiation is made.
5. Contract of Partnership – Partnerships may be validly perfected in any form. However, when real property is contributed, the contract or the articles must be duly notarized in order for the partnership to be valid. Otherwise, no partnership will be validly made.
6. Extrajudicial Settlement Between Heirs – For decedents who left no last will and testament and who did not leave any debt, the heirs of such decedents may execute an extrajudicial settlement in order to divide the properties left by the decedent. For such settlement to be validly made, it must be made in a public instrument which means it must be duly notarized before a Notary Public.
7. Voting Trust Agreement – Section 58 of RA 11232 requires Voting Trust Agreements to be made in a public instrument. These are agreements wherein a stockholder confers to another person called the trustee certain rights that pertains to such share such as the right to vote. These agreements must be duly notarized before a notary public in order to be valid.

The absence of notarization in the aforementioned document renders it null and void, effectively non-existent. Consequently, any transaction or contract it pertains to would be considered as though it never took place. For instance, if your father were to give you the ancestral house and lot with a document stating, “I am donating the ancestral house and lot to my favorite son,” without notarization, the donation would lack legal force. It would be as though the donation never happened due to the absence of notarization.

There are cases that the law requires notarization of documents in order for them to validly affect third parties. Article 1358 of the Civil Code lists down some of these:

1. Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property;
2. The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains;
3. The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person;
4. The cession of actions or rights proceeding from an act appearing in a public document.

Other laws that requires notarization in order for them to affect third parties

1. Under Article 1625 of the Civil Code, an assignment of a credit, right or action shall produce no effect as against third persons, unless it appears in a public instrument, or the instrument is recorded in the Registry of Property in case the assignment involves real property. 
2. Pursuant to Article 2096 of the Civil Code, a pledge shall not take effect against third persons if a description of the thing pledged and the date of the pledge do not appear in a public instrument. 
3. Pursuant to Section 112 of the Property Registration Decree, deeds, conveyances, encumbrances, discharges, powers of attorney and other voluntary instruments, whether affecting registered or unregistered land needs to be notarized and made into a public instrument in order for such documents to be registrable. 

In the documents above, the contract remains legally binding and enforceable between the parties, even in the absence of notarization. However, it cannot be invoked or utilized against third parties. Essentially, while the contractual obligations persist between the involved parties, the document holds no sway in wider legal contexts. For instance, if your friend granted you a special power of attorney to handle their property affairs, but the document lacked notarization, you wouldn’t hold valid authority in the eyes of external entities to conduct transactions on your friend’s behalf. 

It’s crucial to ensure that a genuine Notary Public handles the notarization of all the aforementioned documents. This necessity is underscored by the case of De Joya v. Madlangbayan, where the court invalidated a property transfer due to discrepancies in the notarization process. Despite the deed of sale indicating notarization by lawyer Henry Adasa on April 8, 1996, his name did not appear in the notarial registry. Consider the ramifications: spending a substantial sum to acquire a property, only to have it notarized by a fraudulent Notary Public in an attempt to save a few thousand pesos. Such actions can result in losing everything, as demonstrated in the case where a fake Notary Public rendered the notarization void, leaving the individual with nothing.

How to know if the notary public is legitimate?

When transacting with an office that offers notarial services, here are the things that you must look for:

Physical Presence of Attorney:

• The Rules on Notarial Practice stipulate the mandatory presence of the attorney during the notarization process. Failure to comply with this requirement, where the attorney is absent yet the document is still notarized, may lead to potential criminal liability. This violation amounts to falsification, falsely indicating that the involved parties appeared before a notary public when, in reality, they did not.

Notarial Book

• Every Notary Public maintains a Notarial Book, typically a large blue book containing records of all notarized documents. This book serves as a comprehensive record of notarial acts performed by the Notary Public. It’s essential to ensure that your document is recorded in this book. Failure to do so renders the notarization effectively null and void, as if the documents were never notarized at all.

How to protect yourself from a document with a fake notary?

Here are some ways you can protect yourself from fake Notary Public. 

If Presented with a Notarized Document

1. Check the notarial stamp, which contains:

• Name of the Attorney
• Roll Number of the Attorney
• Serial Number of the Commission of the Notary Public
• The words “Notary Public”
• Province or City where the Notary Public is commissioned
• The office address of the Notary Public
• Expiration Date of the Notarial Commission
• Professional Tax Receipt Number and the place and date of issuance 

2. Check the Notarial Seal which contains:

• Name of Attorney
• Roll Number of the Attorney
• The words “Notary Public” in the middle
• Jurisdiction of the Notary Public

3. Check the lawyer in google or @ sc.judiciary.gov.ph

• Google the Name of Lawyer and the Roll Number of Lawyer

4. Proceed to the law office of the lawyer-notary public and secure a certified true copy of the document

5. Secure Certified True copy from the National Archives of the Philippines

6. Secure Certified True Copy from the Office of the Clerk of Court of the Regional Trial Court where the Notarial Commission was issued

If negotiating a contract that needs to be notarized

1. Go directly to a Law Office and make sure that the lawyer is there
2. Make sure that you are asked to sign in the Notarial Book

Penalty for engaging a fake Notary Public

In addition to the risk of ineffective notarization, individuals who enlist the services of counterfeit Notary Publics, and businesses offering notarial services without the presence of a lawyer, may face criminal charges. Falsifying documents and utilizing them carries penalties under the Revised Penal Code, potentially leading to imprisonment ranging from 6 months and 1 day to 6 years, depending on the gravity of the offense. Additionally, fines may be imposed.

Conversely, individuals masquerading as Notary Publics and establishments providing notarial services without legal oversight may be subject to charges such as Estafa, Usurpation of Authority, or Falsification, among others, as outlined in the Revised Penal Code of the Philippines.

Conclusion

In conclusion, the prevalence of counterfeit notarial services poses significant risks, prompting the need for vigilance and caution in legal transactions. The validity of documents notarized by fraudulent individuals or businesses without legal oversight is questionable and may lead to criminal liability. It’s imperative to ensure the presence of a legitimate Notary Public during notarization and to verify the authenticity of notarial stamps and seals. Failure to comply with these safeguards may result in legal consequences, underscoring the importance of upholding the integrity of the notarization process.

In conclusion, when it comes to notarizing your important documents, trust matters. At Bais Andan Law Offices, we understand the significance of proper notarization and the peace of mind it brings. Our team of attorneys is committed to upholding the highest standards of professionalism and integrity in every notarial act.

By choosing Bais Andan Law Offices for your notarization needs, you can be confident that your documents will be handled with meticulous care and attention to detail. Our expertise in notarial practices ensures that your legal transactions are executed accurately and in accordance with all applicable laws and regulations.

We invite you to experience the difference of working with a law firm that truly values your trust and prioritizes your needs. Contact us today at 0915 968 2503 or (045) 281 0164 or email us at info@baisandanlaw.com to schedule a consultation. You may also choose to request your document to be drafted already before heading to the office by filling up this form. 

Your peace of mind is our priority, and we’re here to provide you Legal Excellence, Personalized Services.