6 September 2023
Contents
6 September 2023
Rating
5 - 1 vote
Notarization is a common-place activity for every citizen in the Philippines. In all parts of the country a notary public may be seen in bustling towns and cities, especially near government offices.
In this guide, the definition of notarization, when it is required, how it is done, who should notarize documents, and the consequences of the lack thereof will be explained clearly. It is always better to notarize a document to protect your rights and interests under the document. If you are unsure if the document should be notarized, it is better to err on the side of caution and proceed with its notarization.
Notarization in the Philippines is a fairly simple process wherein a notary public, a licensed attorney appointed by the Supreme Court, certifies the authenticity and truthfulness of documents by affixing their seal and signature thereon. Notarized documents are considered true and valid with respect to what the documents state and can be submitted as evidence in court proceedings without having to prove each statement made therein, which means the parties thereto are saved from undergoing several steps in case there is a dispute concerning the document that is brought to court. This is further discussed throughout the guide.
The process of notarization involves the conversion of the status of a private document or an unnotarized document, into a public document. Public Documents are those issued by a competent public officer or an official employee of the Philippine government, or those that are duly notarized by a notary public.
A notarized document will serve as stronger evidence in court. In case there is a dispute about a document that has to be brought to court, the document will be taken as the truth because it is notarized and therefore the parties must follow what the document says. Also, the capacity of the parties to sign and execute the document will not be doubted, as the notary has checked this before the document was signed.
Further, any person not a party to the notarized document, also called a "third party", must respect said document and not only the actual parties thereto.
Lastly, the notary public makes sure that the content in the document is correct and corresponds with what the parties want to achieve. This way, the parties are aware of the content of the document and their obligations.
It is of utmost importance that any person who makes a statement in a document should only state what is true and legal, if there is any false statement that is made by a person in a document that is notarized, he may be criminally charged for Perjury which is a felony penalized under the Revised Penal Code of the Philippines.
The necessity for notarization is governed by various laws and regulations such as the Civil Code of the Philippines and various special laws like the Family Code, the Land Registration Law, and the Labor Code. The key instances when notarization is required and mandatory include but are not limited to the following:
Documents involving transfer of real property (land, buildings, etc.), such as deeds of sale, donation, mortgage, and lease. Under the Land Registration Law, deeds involving the transfer, conveyance, or encumbrance of real property must be notarized and registered for their validity.
In simpler terms, if a document will transfer ownership over a land, building, or any other real property, it should be notarized in a deed. Otherwise, the transfer will be void and invalid.
Last wills and testaments must be notarized to be valid. Under Article 805 of the Civil Code, a will must be notarized, and if it is not, it shall be void and ineffective.
Thus, if an ascendant dies and has prepared a will and if it is found not to have been properly executed and notarized, then the descendants cannot enforce that will.
Sworn statements, such as affidavits of loss, consent, residency, and more. These kinds of documents stating certain situations of an individual should be notarized so that any other person can rely on the truthfulness of what the affidavit states.
For example, an affidavit of loss sets forth how the affiant, or the person who made the same, lost a particular thing or document. If such an affidavit is used to prove the details concerning the loss of a particular thing or document, it must be notarized so that the truthfulness of the statements in such an affidavit can be relied upon.
Documents granting authority to act on behalf of another person. A Power of Attorney such as a special power of attorney, involves the assigning of a representative to act on behalf of the person executing the document who is also called the principal.
This involves the granting of rights which enables the representatives to do certain acts that can affect the rights of the principal which is why it is important for a Power of Attorney to be notarized so that its truthfulness can be relied upon.
Certain contracts, like those involving the sale of goods over a certain value, may require notarization. The Civil Code of the Philippines states that contracts that have a value of more than PHP 500 must be notarized to be enforceable. Enforceability means one party to such a contract can make the other party comply with the same in case a dispute concerning the same is brought to a court of law.
An example of this is in the case of a deed of transfer or sale of a motor vehicle. Certainly, the value of this property exceeds the PHP 500 threshold, thus, enabling any third person to rely on the fact that the transferor or seller is the owner of such motor vehicle and that he wants to transfer or sell it to another person.
These are documents releasing parties or certain persons from obligations or claims. These documents involve the act of one person releasing another of any obligation or liability, and this can greatly affect the rights of either party, so it is also necessary that such documents be notarized.
Various laws mandate notarization for specific documents. For example, the Family Code requires the notarization of prenuptial agreements or agreements between future spouses concerning their assets, so if one has already proposed marriage to another and wants their properties to be divided to a certain extent, they may execute a prenuptial agreement duly notarized, otherwise, such agreements will be invalid.
In addition, the Labor Code necessitates the notarization of employment contracts for domestic workers. Thus, employers together with the employee should have the employment contract notarized.
While as a general rule, notarization is not always mandated by law, notarization is advisable for various documents. As stated in Section 1, the document that has been notarized will obtain the status of a public document and will enhance the faith and trust of a person or the public in general that such notarized document is true and valid with respect to the statements made therein and the capacity of the party or parties to enter into or to execute such document.
In a dispute before a court of law, the parties can make sure that the terms in a notarized document will be followed, and the parties will not have to go through the trouble of proving each statement made therein.
On the other hand, a document not notarized will require that each statement therein be proven in a trial including the amount of money stated therein through receipts, and the capacity or authority of the parties to enter into such document or agreement through testifying in court.
For example, in the following documents the law does not provide for their mandatory notarization, but notarization could be recommended due to the importance of the statements or contents found therein:
If the parties want to enhance their credibility and evidentiary value or add protection and reliability to the documents, they should have the said documents notarized before a notary public.
For instance, in a contract where the amount or sum of money involved is high or it will put one party thereto at risk if the other party reneges on the agreement, it is recommended that such contract be notarized even if the law does not require its notarization in order to ensure that one party can enforce the agreement against the other and the interests of both parties over their agreement are secured. In this case, either party will not have to prove each statement in the contract such as proof of payment and the other circumstances of their agreement.
If the risk involved in a document is not significant, and there is no law that requires its notarization, the parties may opt not to notarize such document.
For example, in a services agreement where the amount involved is PHP400, the parties can leave the document as a private or an unnotarized document as the risk of one party reneging on the agreement is low.
Only lawyers who have been appointed as notaries public by the Supreme Court under the Notarial Rules are authorized to notarize documents. Notaries public are officers of the court who are given the power and authority to administer oaths, take acknowledgments, and certify documents.
To notarize a document in the Philippines, the following four simple steps must be observed:
The documents to be notarized must be prepared as well as the valid identification of the persons who wrote or entered into such document.
The party or parties must choose a licensed attorney who is a notary public. If the document is notarized before a non-lawyer, such notarization will be invalid and will not give the document the status of a public document as stated in Section 1.
It must be noted that the notary public must be in the city or municipality where the parties to a document to be notarized are residents, or in case the document involves the transfer of real property such as the sale of lands and buildings, the city or municipality where it is situated.
The party or parties to the document must appear personally before the notary. They should present valid identification documents (e.g., passport, driver's license) to prove their identity.
For instance, in a deed or contract, the parties executing the same must bring themselves as well as their respective valid identification documents in the presence of the notary public. Further, in the case of a power of attorney, it is important that the principal or the person appointing a representative to act on their behalf should appear before the notary public and not the person being appointed as a representative.
The party or parties to the document sign the document in the presence of the notary. It is important that the affixing of the signatures must be done in front and with the knowledge of the notary public so as to ensure that the parties understand the contents of the document and its legal effects.
Each step is important and not following any one of them makes the notarization ineffective, and the document will not be considered as a public document, meaning, the benefits of notarization will not be enjoyed by the parties thereto.
The duties of the Notary Public can be checked and inquired upon by the party or parties to the document after notarization. In particular, the following are the duties that will be accomplished by the Notary Public:
The notary public drafts a notarial certificate which forms part of the notarized document containing details of the notarization, such as the names of the parties, type of document, date, and place of notarization. This may be seen at the end or on the last page of the notarized document.
There are two kinds of notarization that can be checked or inspected depending on the type of document, it may either be a jurat or an acknowledgment which are found in the notarial certificate:
In an acknowledgment, the notary public ensures that:
Acknowledgment is commonly used for documents such as deeds of sale, contracts, and powers of attorney.
In a jurat, the notary public ensures that:
Jurat is commonly used for affidavits that require the affiant to make a sworn statement of truth, such as affidavits of loss and affidavits of residency.
The notary affixes their official seal and signature to the document and notarial certificate. This portion usually includes a dry seal and a stamp bearing the details of the notary public including the information concerning his license to practice law and his jurisdictional commission or his authority to notarize within a certain territory or place.
The notary public records the transaction in their notarial register which is a blue book that includes details about the parties, documents, and fees collected. The notarial register is issued by the Supreme Court which is an official register that can be inspected by persons who have presented a document to the notary public for notarization.
The notarial register is submitted to the local court or the court of the place where the notary public is situated for the court's records. Any person can check on the records of such court to inspect whether the document is indeed notarized.
Failure to comply with the above duties on the part of the notary public will mean that these documents will not be given the status of a public document as stated in the previous Section and in Section 1, as if it has never been notarized by a notary public. Further, the consequences of not notarizing the document and the failure to follow the steps in Section 5 as well as the duties of the notary public in the previous Section will have its consequences as stated in the following Section as if there was no intervention of a notary public.
If the law requires a document or agreement to be notarized, as in those mentioned in Section 2, failure to notarize such documents can result in their invalidity. Meaning, they will have no legal effect.
Further, even if the law does not require the notarization of a document, an unnotarized document has its main consequence that it will not produce legal effects against third parties, meaning those who are not parties to the unnotarized document will not be obliged to comply with the same because it is only a private document and not a public document. In other words, only the parties to the document are bound by their agreement.
For instance, if a person acquires a house in a deed of sale that is notarized, the parties to the said document as well as third parties must follow and respect what it states and the legal effects it produces (i.e. transfer of ownership). On the other hand, if the deed is not notarized, third parties will not be required to comply with the document because they do not have knowledge of the transaction and it is merely a private document. This means that only the parties to the deed are obliged to follow the terms and conditions of the deed.
Another consequence is that in the event that a party brings any dispute concerning an unnotarized document to the court, such party must prove the very existence of the document and the statements made in the document (e.g. by providing proof of payment of the price fixed in the document, providing evidence from witnesses). These additional steps in a court dispute are avoided in case the document is notarized because, as stated in Section 1, notarized documents can be submitted to the court without having to prove each and every statement made therein.
Finally, a document that is not notarized will not be registered in a public registry or accepted in a governmental institution.
For instance, in relation to Section 2.3, if a person loses his driver's license, the government agency concerned, the Land Transportation Office (LTO), will require the owner of the driver's license to submit an affidavit of loss. If this is not notarized, the LTO will not be obliged to accept the said document for the person to request a reissuance of his driver's license.
The importance of notarization cannot be denied as it will give protection and shield the parties in a document against persons who deny its truthfulness and validity.
To recapitulate, the types of documents that should be notarized under the law are the following:
Further, to enhance the enforceability and credibility of the document, it can be notarized optionally.
Notarization of the document is done through the following simple steps:
Lastly, the consequence of the failure to notarize a document is mainly the difficulty of proving the statements in such private documents and the fact that persons not party to such documents will not be obliged to comply since the said documents are not public documents.
In any case, the notarization of a document should revolve around truth and faith, and should never be used to shield wrong-doings and to validate a false statement. It must always be noted that making a false statement in a notarized document is perjury which is a felony punished by the Revised Penal Code.