Posted By Larry Tolchinsky on November 29, 2016
The simplest reason that deeds have the seller’s signature sworn before a notary public is to prevent fraud. This is particularly important in real estate transactions where the seller is foreign or is abroad.
In fact, our years of Foreclosure Fraud and Robosigning are prime examples of what happens in real estate when there is a failure in the notary process. Learn more about that in our free 2011 e-book, “The Non-Lawyer’s Guide to Foreclosure Fraud 2011.”
Which is why there is a state law that addresses conveyances of real estate where the seller isn’t in the State or in the country. A deed transferring Florida real estate must comply with our laws regarding execution and notarization.
Notary Public and Florida Statute 117.107
What is a notary public? A notary public is a recognized officer licensed by the State of Florida, with specific duties defined under Florida law.
Someone who acts as a notary public is serving as a public official. It’s a position of integrity and respect. “Notary publics” are officers who are commissioned by the State of Florida to provide specific notarial acts created in state statutes.
These include those outlined in Florida Statute 117.107(9), which states that a Florida notary public cannot notarize a signature on a document if “…the person is not in the presence of the notary public at the time the signature is notarized.”
This brings us to the problem of having a seller who is in another country when you are buying a Florida home or condo. How can you close with these legal notary requirements? And is this really a problem here in Florida?
Foreign Sellers and Florida Real Estate Closings
In South Florida, there are a great number of residential properties owned by foreign investors. In fact, according to 2015 research by the National Association of Realtors, Miami and Fort Lauderdale alone account for fifty percent (50%) of statewide foreign real estate deals, which totaled $6.1 BILLION in total sales volume that year.
More and more, buyers looking for residential properties here in Florida are going to be dealing with owners who live in another country. It’s pretty commonplace these days.
So what do you do if you are involved in a real estate deal where the owner of the home or condo is not in Florida, but in another country?
Surely you don’t have to pay for a Florida notary public to fly to Canada or Great Britain or China to insure compliance with the presence requirement?
No, you don’t. The Florida Legislature has dealt with this situation already.
Florida Statute 693.03: Notarizing Documents for a Foreign Seller
If you have a document which ordinarily would be signed in front of a Florida notary public, but the person who needs to sign is in another country, then you follow the procedure of Florida Statute 695.03(3).
Under Florida Statute 695.03(3), there are several options for the foreign seller / signatory. He or she may find one option more convenient than another, depending upon the laws of their nation and their personal circumstances. You can read the full text of Florida Statute 695.03 online here.
The County Records Clerk and Florida Statute 695.03
Under Florida Statute 695.03(01), before any real estate documentation can be recorded by a Florida county clerk’s office, that document must be properly executed and acknowledged.
The clerk will review the document for compliance with state law before accepting it. Each county in the State of Florida will have established guidelines for recording a deed in its jurisdiction (you record deeds in the county where the land is located).
If the deed you present to the county clerk’s office does not meet their approval, then the deed will not be entitled to be recorded.
For details on what various counties require for recording a deed, check out the online information provided by:
What will the Clerk look for in the Deed?
Under normal circumstances (where the seller is located within Florida), the seller’s signature on the document must be acknowledged by a notary and the notary acknowledgment should include the names being acknowledged, the date the acknowledgement was taken, the signature of the notary (name printed underneath), and the commission expiration date and seal.
Who Can Act as a Notary Public in A Foreign Country?
For those involved in a transaction with a foreign seller, the seller must execute (sign) the deed before any of the following:
1. A Commissioner of Deeds
A commissioner of deeds is someone appointed by the Governor of the State of Florida to act in that foreign country. His or her seal is acceptable under Florida Statute 695.03.
2. Civil-Law Notary or Notary Public of That Country
Any notary public of the foreign country, or a civil-law notary of either (a) Florida or (b) that foreign country who has an official seal, can act as notary.
Either the foreign country’s own notary public or a civil-law notary can authenticate the foreign seller’s signature on the deed under Florida law.
3. U.S. Representatives in that Nation (Envoys, Diplomats, etc.)
Many American citizens work in foreign countries on behalf of our nation. It is permissible under Florida Statute 695.03 for an ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d’affaires, consul general, consul, vice consul, consular agent, or other diplomatic or consular officer of the United States appointed to reside in such country to acknowledge and authenticate the signature of a foreign seller on a deed transferring Florida real estate.
Here, federal regulations also come into play. Under 22 C.F.R. 92.31, there are notarizing officers at all U.S. Embassies and Consulates. Before they will confirm the seller’s signature on the real estate deed, they will need:
- the personal appearance of the seller requesting the notarial service;
- to establish their identity;
- to establish that the person understands the nature, language and consequences of the signing the deed;
- to establish that the person is not acting under duress; and
- to confirm that the act does not come within the exceptions where notary services must be refused under 22 C.F.R. 92.9.
4. Officers with the United States Military
Finally, there are procedures in place to help our armed forces. These are provided by Article 136 of the Uniform Code of Military Justice.
It is legal for a military or naval officer to perform the duties of notary public, with the officer’s seal being used as the certificate of acknowledgment, legalization, authentication, or proof of the foreign seller’s execution of the deed transferring Florida property.
What Should You Look For In a Deed That Was Notarized Abroad?
Under Florida Statute 695.03(3), there are certain items that must exist on any deed that is presented by a foreign seller in a residential real estate deal. These are:
- The official seal of a civil-law notary or notary public.
- If there is an official seal on the deed from a civil law notary in the foreign nation, then you need to make sure that the seal has been given by an authority in the foreign jurisdiction who has an official seal and who has the power in their laws to make legal or lawful the execution of any document in that jurisdiction.
Are You Having An Issue Having a Florida Deed Signed Overseas?
If you are having an issue with a foreign seller getting a document notarized, a good piece of advice is to talk with an experienced Florida real estate lawyer. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
Florida lawyers have experience in dealing with international transactions and may be able to expedite the closing of your transaction in ways that other real estate professionals cannot.
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