In 2015, the execution requirements for deeds and other documents affecting title to real property changed. Previously, deeds and these types of title documents could be executed with two witnesses and an acknowledgment by the notary. However, the new law requires two “attesting” witnesses. One of these witnesses must be an “official” witness, which is almost always the notary. The key change is the “attestation” requirement and what this means in practical use.
By its own language, a notary acknowledgment states that the person executing the document only acknowledged to the notary that they signed the document. The usual notary acknowledgment language does not state that the notary actually saw the signor execute the document in their presence. The requirement in Georgia is that the notary must attest, or in plain terms, actually witness the signing of the document for it to be valid and recordable.
In common practice, deeds and documents involving real property in Georgia are prepared by Georgia attorneys and are executed in the state. However, more and more transactions are being completed where one or both sides are not physically present at the closing to ensure the documents are executed per Georgia’s requirements. This is becoming even more commonplace due to the pandemic and should be taken into consideration for any out of state parties, parties temporarily located outside of Georgia at the time of closing, and REO transactions where the sellers rarely attend closing in person.
Of particular note, issues with execution often arise from documents involving real property located in Georgia that are physically being executed and notarized in the state of California. All states have their own execution requirements and statutes governing notaries. California has statutory notary language that California notaries are required to use. The typical California notary language is an acknowledgment that does not meet Georgia’s execution requirements.
Since this is such a common issue, attorneys have worked with title insurance companies to find a solution to problems with Georgia documents executed in California. The solution has been another approved notary form that is a California jurat and commonly referred to as a “Hancock Acknowledgment”. This notary form satisfies both the Georgia execution requirements and California notary requirements. The Hancock Acknowledgment is a compromise that complies with the laws of both states, which, most importantly, makes the deed or title related document recordable and insurable.
It is important to understand the interplay between the laws of different states to make sure there will be no issues with the documents or the transaction now or in the future. At Padgett, we continue to stay up to date on any changes to the laws of Georgia and work with title insurance companies to ensure the documents are valid and in full compliance so every transaction is smooth and done correctly. Please contact us to learn more and to stay up to date on any developments.