Bulletin: MI000025

This bulletin is being issued to update a prior bulletin.

The Michigan Notary Public Act (2003 PA 238)  (MCL 55.261 et seq.) went into effect on April 1, 2004.  At the time, the Michigan Department of State published a Summary of Changes to theMichigan notary law.  Public Act 155 of 2006 amended the Michigan Notary Public Act (2003 PA 238) effective May 26, 2006. This act amends three sections within the law, Sections 27, 29, and 47.

The Act requires the notary public to obtain and read a copy of all the current statutes of this state that regulate notarial acts, prior to performing any notarial act.  The full Act is attached for your reference and review.

Here are some key points from a title industry perspective to keep in mind:

1. Required language

When performing a notarial act, the notary public is required toprint, type, stamp, or otherwise imprint mechanically or electronically sufficiently clear and legible to be read by the secretary and in a manner capable of photographic reproduction all of the following in this format or in a similar format that conveys all of the same information.:

(a) The name of the notary public exactly as it appears on his or her application for commission as notary public.

(b) The statement: "Notary public, State of Michigan , County of __________.".

(c) The statement: "My commission expires __________.".

(d) If performing a notarial act in a county other than the county of commission, the statement: "Acting in the County of __________."

(e) The date the notarial act was performed.

Several notaries already have stamps which provide "Acting in the County of _________."  Those who do not have this language on their stamp must print or type the language beneath their commission expiration information when acting in a county other than the county of commission.

2.   Notary authenticity

Confirmation that a notarial act is legitimate is one tool used by examiners in reviewing suspect documents.  Examiners analyze the execution date as it relates to the notary commission expiration date.  Formerly, the length of the commission could be no less than 4 years and not longer than 5 years.  The Act expands this time period.  The commission may last from the "date of appointment until the notary's birthday occurring not less than 6 years and not more than 7 years after the date of his or her appointment".  Another method available to verify the authenticity of a notarial act is to seek a certification from the county clerk.  The Act provides that the county clerk may charge $10 for this service.

3.  Restrictions

The Act contains several restrictions on the performance of notarial acts.  Three of the several restrictions are:

(1) "A notary public shall not perform a notarial act for a spouse, domestic partner, descendant, or sibling including in-laws, steps, or half-relatives."

(2) "A notary public shall not perform any notarial act on a record that contains a blank space."

(3) "The fee charged by a notary public for performing a notarial act shall not be more than $10.00 for any individual transaction or notarial act. A notary public shall either conspicuously display a sign or expressly advise a person concerning the fee amount to be charged for a notarial act before the notary public performs the act. Before the notary public commences to travel in order to perform a notarial act, the notary public and client may agree concerning a separate travel fee to be charged by the notary public for traveling to perform the notarial act."

The second mentioned restriction might require parties to change their practices when handling transactions with relocation companies and notarizing records referencing a simultaneously recorded document such as a deed with a power of attorney.

The third mentioned restriction raises the legal notary fee from $ 2.00 per acknowledgement or jurat to $10 per individual transaction or notarial act.  This issue often arises when the notary public refuses to increase their notary fee at the request of a lender dealing with HELOC products.

4. Employer and Individual Liability

Notaries public should take their own personal civil and criminal liability very seriously when being asked to notarize any document.  Section 37 of the Act permits a civil action to be brought against an employer if the notary public/employee is acting within the employee's actual or apparent scope of employment and if the employer had knowledge of and consented to or permitted any "official misconduct".   Pursuant to the Act, "official misconduct" includes the performance of an action that is unauthorized, unlawful, abusive, negligent, reckless, or injurious and the charging of a fee that exceeds the maximum amount authorized by law.

Documents that are forged or fraudulent are a great area of concern for us as an industry.  If the notary public does not see the parties sign the document AND carefully examine the identification, the notary public puts more than the company at risk.  The notary public's personal liability is also at stake.

Please take ten minutes now to read the Act in its entirety.

If you have any questions regarding this Act, please contact Gary Kaiser, John Tacia or me.