NOTARY – THE PUBLIC OFFICER

NOTARY – THE PUBLIC OFFICER 

What exactly is the Notary or Notary Public? What can he/she do actually? Who authorizes them to do what they do? Good questions all! 

Let’s see if we can de-mystify these people! 

First of all, the Notary is appointed to public office by the Governor of a state. The notary must have taken and passed the state administered notary exam. The responsibilities and duties afforded the notary is set by state law. 

Notice that each state has different laws that pertain to their notary office. The responsibilities and duties of the notary are different for each state. Many states have similar laws, and some may be the same. Only in Louisiana are they different from the other 49 states, so if you are reading this, and do not live in Louisiana, you may want to explore the laws of your state, as they pertain to the notary. The state of Louisiana is unique as notaries go. 

Because of the last statement I just made, there are many requirements for Louisiana Notaries, and the test is a rigorous test, which is rarely passed on the first try. The test; held in Baton Rouge, LA, is only held twice a year. The test is all encompassing, takes about five(5) years to pass, sometimes more for some, and does focus on the laws of the state. 

The Notary takes an oath of office, and is required to file the oath with the Secretary of State and Court in the Parish of the Notaries Commission. This oath is the same as that of any public officer in the state. 

Qualifications for the office must be maintained in order for the notary to exercise the powers and duties of this public office. The notary exercises his power independent of the state and is considered as providing a service to the state. The notary acts are not a governmental function, but only ministerial acts. The notary may hold any state or governmental office without violating the dual office holding laws. In addition, the notary commission does not expire, as it does in all the other states. 

Notaries are not subject to legislative audit and do not have to report their rates or fees charged to the state. The notary commission is not an office, trade, or profession, therefore, no occupational license or license tax is required. Notary fees are not subject to self-employment taxes or taxable by the Social Security Administration. 

The NOTARY PUBLIC is subject to misconduct and illegal acts as a public official, and subject to prosecution for official misconduct. 

If the notary intentionally refuses or fails to perform any lawful duty required of him/her or intentionally performs any such duties in an unlawful manner, this is called malfeasance in office, or if he/she knowingly permits any other public officer or employee under the notary’s authority to refuse or fails, as above stated, it is also called malfeasance in office, according to Louisiana R.S. 14:134. (Louisiana Revised Statute, article 14, section 134) 

Penalties for malfeasance are imprisonment up to 5 years, and fines not to exceed $5,000.00. These are also set out in Louisiana R.S. 14:134. 

There are more penalties that also apply. It is easy to see why a notary may refuse to notarize something that does not follow the allowable duties for the office. Bribery and corrupt influence are also covered under La R.S. 14:118. These can be found by anyone online. I encourage people to look them up. I know some things may seem boring to the average person, but laws are put into place to protect the public. 

Some other things a notary can be judged on include forgery, injuring public records, by putting false information in official records, or amending information that is a matter of public record that others may depend on. Falsely representing public records is a major crime. 

A notary commission in Louisiana is for life, (as long as the notary keeps current with information and criteria as mandated), but can be suspended. A notary must (is required to) carry liability insurance, bond, surety. Failure to do so will cause an automatic suspension. A notary CAN be removed from office under provisions of our state constitution. This would be done as impeachment by the State House of Representatives, and final conviction by the Senate. 

Duties: The duties of a Notary Public in Louisiana are what makes a Louisiana Notary so different. The responsibilities are vast, and because of the similarities between a Notary and Attorney in this state (la), one must be very careful not to fall into the temptation to become an attorney, thereby overstepping the bounds of our appointment as Notaries. 

The list that follows outlines most of the duties of the Notary. These are mandated by Title 35 of the Louisiana Revised Statues. General Powers of a notary within the parish they are commissioned (or statewide if the notary has statewide jurisdiction, which I do

1. Make inventories, appraisements, partitions, affidavits or correction. 2. receive wills, make protests, matrimonial contracts, conveyances, 3. Hold family and creditor meetings 4. Receive acknowledgments of instruments under private signature 5. Affix seals upon effects of deceased persons and raise the same 6. Authentic acts (Civil Code Art. 1833) You can find this online by searching for it The most notable are things like title transfers, acts of donation, wills or testaments, trusts and so much more. 

The commissioned notary shall have the authority to administer oaths in any parish in the state; to swear in persons who appear to give testimony at a deposition and to verify interrogatories and other pleadings to be used in court records of this state. 

Only licensed attorneys and notaries that have taken the notary exam in or after June of 2005 may exercise their duties and powers as commissioned notaries anywhere in the state if they are commissioned in and for the parish where they live and are a registered voter. 

There is much more information pertaining to the Notary Public in the State of Louisiana. This information is given so that a person can know and understand the diversity of the Notary in Louisiana. Please understand that not all states have the same responsibilities and duties under their state legislation. Check with your state of interest for more details if you like. 

Some of the Vocabulary you may find useful: 

PUBLIC OFFICE: Any state, district, parish or municipal office, elected or appointed, or any position as member on a board or commission, elected or appointed, when the office or position is established by the constitution or laws of this state. 

PUBLIC OFFICER: Is any person holding a public office in this state. 

MINISTERIAL: Refer to acts performed by notary as a service for a fee and not as a governmental function. 

PARAPHING: The notation on a document to mark it for identification with another act. 

Please note: Although this article refers to the powers and duties of the notary public, there is only one(1) authority in this world that matters. That authority directs, maintains, empowers, controls, and most importantly loves each of us. It is by this authority that we should request anything we believe we need, and by this authority we should act. 

If you are unsure of what this authority is, you should call me, and I will share it with you. My phone number is (985) 870-8896 

What Do The Following Terms Mean?

WHAT DO THE FOLLOWING TERMS MEAN?

Forced Heir – This would be a descendant of the first degree, that would be the daughter or son of a mother or father, who at the time decedent dies, has not attained 24 years of age, or are 23 and under.  Also, a forced heir can be someone older than 23 who because of mental incapacity or physical infirmity is permanently incapable of taking care of his/her person or to administer his/her estate at the parent’s death.

Accessory contract – A contract is accessory when it is made to provide security for the performance of an obligation.  Suretyship, mortgage, pledge, and other types of security agreements are examples of accessory contracts.  (Louisiana Civil Code art. 1913)

Acquisitive Prescription – A mode of acquiring ownership of other real rights by uninterrupted possession for a period of time.  (Real refers to real estate)  Uninterrupted means without ceasing, without a break

Affiant – One who makes an affidavit.

Alienate – To transfer property or a right to the ownership of another, especially by an act of the owner rather than by inheritance.

Authentic Act – A writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.

Bequest – A disposition of property made by a testator. (Someone that makes a WILL)

Capacity – A legal qualification, including age and other factors.  Parties, unless emancipated, must be 18 years of age to contract. Witnesses to most instrument must be at least 14. Witnesses to most instruments must be 16.
Chattel – In general, used to designate movable property, as in the case of a “chattel mortgage”, which is a mortgage of a movable property.  Movable property is any property that is not permanently located and is movable.


Bond for Deed

BOND FOR DEED

What Is a Bond For Deed?  A contract to sell real property, or a Movable like a car or truck, where the purchase price is paid to the vendor in installments, and the title remains in the name of the vendor until the purchase price is paid in full.  

In a recent transaction, I will use two clients, whom I will call John and Theodore.  (Not their real names, by the way). So John has a Ford truck, valued at $8,000, and Theodore wants to purchase it, but does not have $8,000 lying around in his bank account.  So John used a BOND FOR DEED, to sell it to Theodore.  

They came to an agreement that Theodore could spend $343.33 per month, to pay John for 24 months, beginning the 1st of July, 2019, and Theodore would continue to pay John each month without fail until the last payment was made.  To make it come out correctly, the final payment would have to be $343.41, since John was charging 1.5% interest on this, to finance for 24 months, or two years.

Just in case anything would happen to the truck during those 24 months, John requires an insurance policy to be carried on the truck, in his name, since the title would remain in John’s name until the truck is paid.  The payments will be considered rental payments until the last payment is made, upon which John agrees to transfer the title over to Theodore using any Notary of Theodore’s choice, at Theodore’s expense.  

If Theodore  defaults on any payments, John will have 45 days to notify Theodore by registered or certified mail.  In any event, if Theodore can not, or will not make the defaulted payments good, then John will have the right to cancel the contract by giving Theodore written notice, and Theodore would be required to peacefully return the vehicle to John.

If Theodore cancels the contract, then Theodore will need to pay John the fair rental amount due for the period of time it is used, minus any payments already made, of course.  

This arrangement, or agreement works equally well for Immovable, or Real Property.

* If this situation fits with something you want to do, it may work for you as well.  If you are not certain, you may need to seek the advice and/or services of one of the many excellent attorneys in Louisiana.

SERVITUDES

SERVITUDES

DEFINITION: A servitude is a charge or burden upon a thing, usually an immovable(real estate), for the benefit of another person or another estate.  Black’s Law Dictionary, 6th edition (1990).  It is closely related to the common law concept of easement.

Kinds of servitudes
Servitudes are either personal or predial.  La. C.C. art 533.  A personal servitude is a charge on a thing for the benefit of a particular person and terminates with his life.  La. C.C. arts. 534,734, Cf., La. C.C. art 607.  A predial servitude is a charge on a thing for the benefit of the owner of another thing.  La. C.C. arts 646,733.  A predial servitude does not terminate with the death of the owner of the thing in whose favor the servitude runs, but extends to any owner, whether the original or a successor.

Art. 533.  Kinds of Servitudes
There are two kinds of servitudes: personal servitudes and predial servitudes.

Art. 534. Personal servitude
A personal servitude is a charge on a thing for the benefit of a person.  There are three sorts of personal servitudes:  usufruct, habitation, and rights of use.

Art. 646. Predial servitudes definition.
A predial servitude is a charge on a servient estate for the benefit of a dominant estate.

The two estates must belong to different owners.

Art. 733. Interpretation: benefit of dominant estate.
When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.

Act. 734. Interpretation: convenience of a person.
When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns.

 

Matrimonial Regimes in Louisiana

This is also called the Legal Regime: The Community of Acquets and Gains.   The legal regime applies to spouses domiciled in this state regardless of their original matrimonial domicile or whether the marriage was contracted in Louisiana.   For the purposes of this law, the following applies to Community Property.

Property that comprises the community of acquets and gains is referred to as “community property”  This is covered under Civil Code (CC) article 2338.  Community property is

a) Property acquired during the legal regime
b)  generally, property acquired with community things, or acquired with community and separate things.
c)  property donated to the spouses jointly
d)  natural and civil fruits of community property
e)  damages awarded for loss or injury to community things
f) all other property not classified as separate property.

Aside from a duly executed and legal Prenuptial Agreement, these tenants and laws apply.  For more details, call Joe’s Notaries at (985) 870-8896 or Email us at jwestjr@gmail.com.