CHRISTINE NORSTADT
[email protected]
Christine Norstadt is an attorney at Pursley Friese
Torgrimson, LLP, where she focuses on commercial
real estate transactions and litigation. She is also a
Contributing Editor for the network
Whose Signature Is It
Anyway?
E
The In Execution of Real
Estate Documents
xecuting a legal real estate document may seem like the easiest part
of the deal – after all that time spent negotiating, performing due
diligence. Now it’s finally closing time; however, so often parties do not
properly execute documents, leading to problems down the road. This
article will address some of the most common errors in document execution,
beginning with one of the most confusing – the proper execution of deeds.
Signatures Required on a Georgia Deed to Land
If the deed is not properly executed, it is not acceptable for recording. Per
Georgia law, a “deed to land,” which includes warranty deeds, quitclaim deeds,
deeds to secure debts and easements, must be an original document, signed by
the maker, attested by an officer as provided in O.C.G.A. 44-2-15 and attested
by one other witness.
To attest is to witness and subscribe to the execution of a written
instrument at the request of the one making. The “maker” is the one
making the deed or granting the property.
Once before the notary, the person signing the document must ensure that
the notary perform the correct “notarial act.” Notarial attestation is a similar
act, but legally distinct, from a notarial acknowledgement. As noted above,
an attestation requires the notary to witness the person signing the document
and subscribe his name and seal to evidence such fact. Some key words that
denote an attestation are “Signed, sealed and delivered in the presence of ”
appearing above the notary’s signature and other witness’ signature, or, in a
notarial certificate attached to the deed, the words “signed in my presence.”
The description of the notarial act must make it clear to the reader that the
notary whose signature and seal appear below those words actually witnessed
the maker executing the deed.
On the other hand, an acknowledgment requires the notary to confirm that the
maker willingly executed a document, but it does not necessarily mean that the
notary saw the maker sign it. The maker, after appearing and identifying herself
to the notary, could tell the notary that she signed, and the notary will issue the
acknowledgment certificate. Therefore, an acknowledgment certificate
is not acceptable to satisfy the attestation requirements under
Georgia law and is not acceptable for purposes of recording a “deed
to lands” in Georgia.
Practice Tip: Georgia notaries do not typically use a separate notarial
certificate attached to a deed. Instead, the notary usually signs on the line
designated for the notary and stamps or seals the document underneath
the line. In other states, such as California, notaries complete a separate
certificate which is then attached to the document to be recorded. In
California, the more common notarial act is an acknowledgment, so it is
particularly important to be aware of the Georgia attestation requirements
when transacting with an out of state party who might use a California
notary. It is acceptable in Georgia that the notary attaches its own
certificate, but that certificate must satisfy the attestation requirements for
deed recording, meaning that a California acknowledgment certificate is
not acceptable. The California notary will need to complete another type
of certificate which states that the notary actually witnessed the party
executing the document. It is a small detail with a potentially significant
effect on the transaction.
Finally, the “other witness” must attest to the maker’s signing the deed and
subscribe his name to be evidence of such fact. The other witness cannot be the
Note that there are two parties who must attest to the maker’s
signature. The witnessing requirement for deeds changed within the last few
years, and this is the area where real estate attorneys most often see problems
which require re-execution of deeds, which can cause delays to a deal and
headaches to the parties involved.
An “officer as provided in O.C.G.A. 44-2-15” must witness the deed. That Code
Section provides for several options of persons who may attest to the execution
of a recordable instrument, including a judge, a magistrate or a clerk of superior
court, or a notary public, which is the most common officer to attest to deeds.
Georgia notary publics may attest to instruments within any county in Georgia;
that is, even though a notary may be commissioned in Cobb County, he or she
may attest to a deed made in Fulton County. By contrast, a clerk of superior
court may only attest to instruments made in the clerk’s county.
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THE NET WORK | MAR2017
YOU NEED TO KNOW
Why do you need a driver’s license to buy liquor when you can’t drink and drive?
same person as the notary. While it is not required,
it is good practice to include a line for the witness to
print his name so that the witness can be identified.
Practice Tip: If there is more than one party
making the deed, such as a reciprocal
easement agreement, or a transaction with
multiple grantors selling real property: each
“maker” should have its own signature block
with its own attestations by a notary and other
witness in order to satisfy Georgia law.
Practice Tip: The notary and other witness
cannot “witness after the fact.” That is, the
maker cannot send the deed to his attorney’s
office and ask someone at the office to witness
and notarize it. The notary cannot lawfully
make the statement that she witnessed the
maker executing the document, nor can the
other witness, even if the maker verifies that
he executed the document.
Quick Checks That Make All the Difference
(These do not only apply to real estate documents to
be recorded, but are important in any agreement.)
• Fill in all the blanks and attach exhibits.
(Examples -the date of the agreement, the date that
the agreement was signed, the printed name of the
parties executing the documents (as opposed to just
the party’s signature), and the parties’ addresses for
notices to be given under the agreement. When a
document has a blank or a missing exhibit, it can
cause problems for the parties down the road.
• Is the correct party signing? If the agreement is
intended to be in the name of ABC, Inc., then the
agreement itself and the signature block should
reflect that ABC, Inc. is executing the agreement
(e.g., ABC, Inc. executed by Jane Smith, as President
of ABC, Inc.) Compare this to Jane Smith signing
individually without any reference to ABC, Inc. If
the agreement and signature block are inconsistent,
it could call the parties’ intent into question or
possibly create a title problem in the future.
If in doubt about the proper execution of a
document, particularly one that needs to be
recorded, consult with the closing agent, title
insurance agent or your attorney. After all your
work negotiating the deal, you want to be certain
you are documenting it correctly!
I
Head of
State
vs
Head of Government
t’s mostly a linguistic difference, since the powers of absolute monarchs depended on their place and
time in history. A king is pretty much any male hereditary ruler. Czar is basically a Russian equivalent to
emperor. Emir is Arabic, roughly equivalent to prince (not king, which in Arabic is Malik), but it can also
mean commander or general. Sultans were originally rulers officially sanctioned by the Islamic Caliph to
rule a certain area without claiming the entire caliphate (so it’s sort of like a governor or viceroy) but they were
for the most part functionally kings. In western languages, the words are generally descended from ancient
Latin and German terms.
Emperor comes from the Latin Imperator and Czar, Kaiser, and Tsar are all derived from the title Caesar. The
Latin word for King was Rex and from that we get the Spanish Rey and French Roi and from the French Roi
we get the English word Royal. The word King has Germanic roots and is related to König in modern German.
The term Dictator comes from Latin. Also, depending on titles one could be both a King and an Emperor.
For example, Charles V was both King of Spain and Holy Roman Emperor though inheritance. Victoria was
Queen of England and Empress of India at the same time since she ruled over both nations.
The CIA’s World Factbook defines a head of state as an individual who represents a
government in a symbolic fashion but does not oversee the daily activities of a country. A
head of government, on the other hand, oversees daily executive and legislative activities
of a country.
In America, the President is both the chief of state and the head of government, but in many countries, the
two offices are divided. In modern times, the main function of the head of state is to serve as an individual
human representative for the nation as a whole, and the office is often non-political. Heads of government
are administrators that wield government power and handle the management of the country. When most
Americans think of things our president does as part of his job, we think of the duties of a head of government.
In many countries, the actual head of state has little real power, unless he is also the head of government.
In the UK, for example, the head of state is the king or queen, and the head of government is the prime minister.
Technically, the prime minister is appointed by the monarch to administer the country, but the monarch
always appoints the head of the party who wins the most votes in the parliamentary election. Technically, this
isn’t a requirement, but no one really knows what would happen if the queen decided to ignore an election and
appoint someone of her own choosing.
France is somewhat of an anomaly; the head of state is a president who is elected to five-year terms (changed
from seven years in 2001), and the head of government is the prime minister, who is nominated by the
legislature and appointed by the President. When the president doesn’t have a majority in the legislature, he or
she is forced to appoint a prime minister from an opposition party, and since France’s office of president has
some political power of its own, this split between the head of state and the head of government leads to all
sorts of complicated political power struggles.
The head of state usually does not hold any type of executive or legislative role, he/she holds a symbolic/
ceremonial role (e.g., a symbol of national identity) – and is often seen as a person who is above politics. A
head of state helps promote unity and pride. The ability to pass legislation is left in the hands of the head of
government. Chiefs of state are always given much more elaborate treatment when they travel than heads of
government are, even though they often have far less power.
The head of government oversees the operation of the civil service and government agencies and appoints
members of the government. In a presidential system, a single individual holds both titles and does both sets
of duties. This is seen in the United States, South America and some African countries.
In a parliamentary system of government (such as in the UK, Germany, Italy, Canada, and Japan, among many
other places), the head of state and the head of government are two roles divided between two people. The head
of state’s role is not to be perceived as advancing a partisan agenda, but as a symbol of continuity; the head of
government is just that - the head of the government, the cabinet of ministers, chosen by the ruling party (or
coalition of parties) who carry out the implementation of laws and advance a legislative agenda.
President Barack Obama meets with then President-elect
Donald Trump in the Oval Office on Nov. 10, 2016
British Prime Minister Teresa May
MAR2017 | THE NET WORK
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