Revision: Jan. 21, 2010, midnight
CHAPTER 118
HB 672-FN – FINAL VERSION
30Mar2005… 0906h
04/21/05 1155s
2005 SESSION
06/03
HOUSE BILL 672-FN
AN ACT relative to notaries public, justices of the peace, and adopting the Uniform Law on Notarial Acts.
This bill:
I. Adds commissioners of deeds to the law on notaries public and commissioners.
II. Adds penalties for misconduct by notaries and justices of the peace, and unauthorized persons who perform notarial acts.
III. Adopts the Uniform Law on Notarial Acts.
IV. Repeals the Uniform Acknowledgment Act and the Uniform Recognition of Acknowledgments Acts.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
30Mar2005… 0906h
04/21/05 1155s
05-0870
06/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT relative to notaries public, justices of the peace, and adopting the Uniform Law on Notarial Acts.
Be it Enacted by the Senate and House of Representatives in General Court convened:
118:1 Protest as Evidence; Indorsers Changed to Endorsers. Amend RSA 455:4 to read as follows:
455:4 Protest as Evidence. The protest of a bill of exchange, note, or order, duly certified by a notary public, shall be evidence of the facts stated in the protest and of the notice given to the drawer or [indorsers] endorsers.
118:2 Notarial Fees Increased. Amend the introductory paragraph of RSA 455:11 to read as follows:
455:11 Notarial Fees. Notaries public shall be entitled to a fee of up to [$5] $10 for each oath, witness, service, or certification with the following exceptions:
118:3 Appointment: Commissioner of Deeds Added. Amend RSA 455:12 to read as follows:
455:12 Appointment. The governor, with advice and consent of the executive council, may appoint, in each state, district, and territory of the United States, and in each foreign country to which the United States sends a representative, a commissioner or commissioners of deeds, to continue in office 5 years.
118:4 Oath; Commissioner of Deeds Added. Amend RSA 455:13 to read as follows:
455:13 Oath. Before any commissioner of deeds shall perform any duty of his or her office, he or she shall take and subscribe an oath, before a judge of some court of record, that he or she will well and faithfully perform all the duties of the office, which oath shall be filed by him or her in the office of the secretary of state within 3 months after taking the same.
118:5 Powers; Commissioner of Deeds Added. Amend RSA 455:14 to read as follows:
455:14 Powers. Such commissioner of deeds may, both within and without this state, administer oaths, take depositions and affidavits to be used in this state and notify parties of the time and place thereof, and take the acknowledgment of deeds or instruments to be used or recorded in this state, in the same manner and with the same effect as a justice of the peace of this state may do within the state.
118:6 New Subdivision; Enforcement. Amend RSA 455 by inserting after section 15 the following new subdivision:
Enforcement
455:16 Misconduct, Penalties.
I. A person shall be subject to a civil penalty not to exceed $1,000 if such person:
(a) When applying for a commission as a notary public, negligently or recklessly makes a material false representation on the application form;
(b) Holding a commission as a notary public or justice of the peace, negligently or recklessly makes a notarial act that is false;
(c) Holding a commission as a notary public or justice of the peace, negligently or recklessly makes a notarial act for a person not personally known by the notary without first requiring the person to establish his or her identity; or
(d) Holding a commission as a notary public or justice of the peace, negligently or recklessly makes a notarial act purporting to have witnessed the maker’s signing of the document or purporting to have received the oath or affirmation of the person, when the notary did not actually witness the maker’s signing of the document or did not actually receive the oath or affirmation of the person.
II. A person shall be guilty of a class A misdemeanor:
(a) If such person purposefully or knowingly commits any of the acts listed in paragraph I.
(b) If such person makes a notarial act, as defined by RSA 456-B:1, I, knowing he or she is not a person authorized by RSA 456-B:3 to perform a notarial act.
III.(a) The court, upon petition of the attorney general, may levy upon any person who violates the provisions of paragraph I a civil penalty in an amount not to exceed $1,000 per violation. All penalties assessed under this paragraph shall be paid to the secretary of state for deposit into the general fund.
(b) The attorney general shall have authority to notify suspected violators of this section of the state’s intention to seek a civil penalty, to negotiate, and to settle with such suspected violators without court action, provided any civil penalty paid as settlement shall be paid to the secretary of state for deposit into the general fund.
455:17 Notary Public, Justice of the Peace Manual, Education, Enforcement.
I. The secretary of state, with the advice and approval of the attorney general, shall prepare or cause to be prepared an up-to-date manual on the privileges, duties, and responsibilities of notaries public and justices of the peace in New Hampshire. The manual shall be written in non-technical language. The manual shall be distributed to each person commissioned a notary public, commissioner of deeds pursuant to RSA 455:12, and justice of the peace. The manual shall be available to the public free of charge. The manual shall be updated within 6 months following the end of any session of the legislature that amends the statues affecting the privileges, duties, or responsibilities of notaries public, commissioners, or justices of the peace. The first edition of the manual shall be prepared by September 1, 2007.
II. The secretary of state may use the funds from the portion of the fees paid by applicants for commissions as a notary public or a justice of the peace deposited into the fund established in RSA 660:31 for the preparation, printing, and distribution of a notary public/justice of the peace manual, other education of notaries public/justices of the peace, or both, and the acquisition, development, and maintenance of electronic records systems that will enhance the efficiency of the management of public records maintained by his or her office and to enhance the ease of submitting applications and renewals. The secretary of state shall enter into an agreement with the attorney general to provide funds from the fund established in RSA 660:31 for the use of the attorney general for legal services related to the notary public/justice of the peace manual and for the enforcement of laws relating to notary public or justice of the peace misconduct.
118:7 Fees Increased. Amend RSA 5:10 to read as follows:
5:10 Office Fees. Except as otherwise provided, the following fees shall be paid to the secretary of state for the use of the state: For every commission issued to a justice of the peace or to a notary public, [$50] $75, $25 of which shall be deposited into the fund established by RSA 660:31 for the use of the secretary of state and the attorney general as provided by RSA 455:17; for every certificate pertaining to the existence of a corporation, trade name, or other business entity, or writ served on the same, $5; for every such certificate in long form, $10; for every apostille provided under the Hague Convention of 1961 and for every certificate for a notary public or justice of the peace, $10; for every other certificate under seal of the state, $5; for engrossing private acts, $1 for each page of 240 words; for expedited service of every 10 documents or any part thereof, $25.
118:8 Reference Changed. Amend RSA 6:12, I(b)(41) to read as follows:
(41) The fees collected by the secretary of state under RSA 660:1 and the designated portion of fees collected under RSA 5:10 which shall be credited to the recount administrative and fee account established under RSA 660:31.
118:9 Recount Administrative Account; Depositing Fees and Assessments; Notary Public Manual Added. Amend the subdivision heading preceding RSA 660:31 and RSA 660:31 to read as follows:
Recount Administrative and Fee Account
660:31 Depositing Fees and Assessments. There is established in the state treasury a separate nonlapsing account to be known as the recount administrative and fee account. The account shall be used by the secretary of state for the administration of recounts under RSA 660 and to fulfill the duties established by RSA 455:17. Notwithstanding any other provision of law, all fees which are paid to the secretary of state under RSA 660:1 and the portion of application fees for commissions as a notary public or justice of the peace under RSA 5:10 shall be credited to this account. All fees which are credited to this account shall be continually appropriated to the secretary of state.
118:10 New Chapter; Uniform Law on Notarial Acts. Amend RSA by inserting after chapter 456-A the following new chapter:
CHAPTER 456-B
456-B:1 Definitions.
I. “Notarial act” means any act that a notary public is authorized to perform, and includes taking an acknowledgment, administering an oath or affirmation, taking a verification upon oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument.
II. “Acknowledgment” means a declaration by a person that the person has executed an instrument for the purposes stated therein and, if the instrument is executed in a representative capacity, that the person signed the instrument with proper authority and executed it as the act of the person or entity represented and identified therein.
III. “Verification upon oath or affirmation” means a declaration that a statement is true made by a person upon oath or affirmation.
IV. “In a representative capacity” means:
(a) For and on behalf of a corporation, partnership, trust, or other entity, as an authorized officer, agent, partner, trustee, or other representative;
(b) As a public officer, personal representative, guardian, or other representative, in the capacity recited in the instrument;
(c) As an attorney in fact for a principal; or
(d) In any other capacity as an authorized representative of another.
V. “Notarial officer” means a notary public, justice of the peace, or other officer authorized to perform notarial acts.
456-B:2 Notarial Acts.
I. In taking an acknowledgment, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the acknowledgment is the person whose true signature is on the instrument.
II. In taking a verification upon oath or affirmation, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the verification is the person whose true signature is on the statement verified.
III. In witnessing or attesting a signature the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the officer and named therein.
IV. In certifying or attesting a copy of a document or other item, the notarial officer must determine that the proffered copy is a full, true, and accurate transcription or reproduction of that which was copied.
V. In making or noting a protest of a negotiable instrument the notarial officer must determine the matters set forth in RSA 382-A:3-505.
VI. A notarial officer has satisfactory evidence that a person is the person whose true signature is on a document if that person is personally known to the notarial officer, is identified upon the oath or affirmation of a credible witness personally known to the notarial officer, or is identified on the basis of identification documents.
456-B:3 Notarial Acts in This State.
I. A notarial act may be performed within this state by the following persons:
(a) A notary public of this state;
(b) A judge, clerk, or deputy clerk of any court of this state; or
(c) A justice of the peace of this state.
II. Notarial acts performed within this state under federal authority as provided in RSA 456-B:5 have the same effect as if performed by a notarial officer of this state.
III. The signature, official seal or the legible imprint of an official rubber stamp stating the name of the notary, and the words “notary public, New Hampshire” and the expiration date of the notary public’s commission of a person performing a notarial act or for a justice of the peace the name of the justice and the expiration date of his or her commission typed, printed, or stamped on the document are prima facie evidence that the signature is genuine and that the person holds the designated title.
IV. Any person admitted to the practice of law in this state may administer an oath or affirmation for the purpose of taking oral testimony.
456-B:4 Notarial Acts in Other Jurisdictions of the United States.
I. A notarial act has the same effect under the law of this state as if performed by a notarial officer of this state, if performed in another state, commonwealth, territory, district, or possession of the United States by any of the following persons:
(a) A notary public of that jurisdiction;
(b) A judge, clerk, or deputy clerk of a court of that jurisdiction; or
(c) Any other person authorized by the law of that jurisdiction to perform notarial acts.
II. Notarial acts performed in other jurisdictions of the United States under federal authority as provided in RSA 456-B:5 have the same effect as if performed by a notarial officer of this state.
III. The signature and title of a person performing a notarial act are prima facie evidence that the signature is genuine and that the person holds the designated title.
IV. The signature and indicated title of an officer listed in subparagraphs I(a) or (b) conclusively establishes the authority of a holder of that title to perform a notarial act.
456-B:5 Notarial Acts Under Federal Authority.
I. A notarial act has the same effect under the law of this state as if performed by a notarial officer of this state if performed anywhere by any of the following persons under authority granted by the law of the United States:
(a) A judge, clerk, or deputy clerk of a court;
(b) A commissioned officer on active duty in the military service of the United States;
(c) An officer of the foreign service or consular officer of the United States; or
(d) Any other person authorized by federal law to perform notarial acts.
II. The signature and title of a person performing a notarial act are prima facie evidence that the signature is genuine and that the person holds the designated title.
III. The signature and indicated title of an officer listed in subparagraphs I(a), (b), or (c) conclusively establishes the authority of a holder of that title to perform a notarial act.
456-B:6 Foreign Notarial Acts.
I. A notarial act has the same effect under the law of this state as if performed by a notarial officer of this state if performed within the jurisdiction of and under authority of a foreign nation or its constituent units or a multi-national or international organization by any of the following persons:
(a) A notary public or notary;
(b) A judge, clerk, or deputy clerk of a court of record; or
(c) Any other person authorized by the law of that jurisdiction to perform notarial acts.
II. An “Apostille” in the form prescribed by the Hague Convention of October 5, 1961, conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
III. A certificate by a foreign service or consular officer of the United States stationed in the nation under the jurisdiction of which the notarial act was performed, or a certificate by a foreign service or consular officer of that nation stationed in the United States, conclusively establishes any matter relating to the authenticity or validity of the notarial act set forth in the certificate.
IV. An official stamp or seal of the person performing the notarial act is prima facie evidence that the signature is genuine and that the person holds the indicated title.
V. An official stamp or seal of an officer listed in subparagraph I(a) or (b) is prima facie evidence that a person with the indicated title has authority to perform notarial acts.
VI. If the title of office and indication of authority to perform notarial acts appears either in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
456-B:7 Certificate of Notarial Acts.
I. A notarial act must be evidenced by a certificate signed and dated by a notarial officer. The certificate must include identification of the jurisdiction in which the notarial act is performed and the title of the office of the notarial officer and may include the official stamp or seal of office. If the officer is a notary public, the certificate must also indicate the date of expiration, if any, of the commission of office, but omission of that information may subsequently be corrected. If the officer is a commissioned officer on active duty in the military service of the United States, it must also include the officer’s rank.
II. A certificate of a notarial act is sufficient if it meets the requirements of paragraph I and it:
(a) Is in the short form set forth in RSA 456-B:8;
(b) Is in a form otherwise prescribed by the law of this state;
(c) Is in a form prescribed by the laws or regulations applicable in the place in which the notarial act was performed; or
(d) Sets forth the actions of the notarial officer and those are sufficient to meet the requirements of the designated notarial act.
III. By executing a certificate of a notarial act, the notarial officer certifies that the officer has made the determinations required by RSA 456-B:2.
456-B:8 Short Forms. The following short form certificates of notarial acts are sufficient for the purposes indicated, if completed with the information required by RSA 456-B:7, I:
I. For an acknowledgment in an individual capacity:
State of ___________________________________________
(County) of ________________________________________
This instrument was acknowledged before me on (date) by (name(s) of person(s))
___________________________
(Signature of notarial officer)
(Seal, if any)
__________________________
Title (and Rank)
[My commission expires: ______]
II. For an acknowledgment in a representative capacity:
State of ___________________________________________
(County) of ________________________________________
This instrument was acknowledged before me on (date) by (name(s) of person(s)) as (type of authority, e.g., officer, trustee, etc.) of (name of party on behalf of whom instrument was executed).
___________________________
(Signature of notarial officer)
(Seal, if any)
___________________________
Title (and Rank)
[My commission expires: ______]
III. For a verification upon oath or affirmation:
State of ___________________________________________
(County) of ________________________________________
Signed and sworn to (or affirmed) before me on (date) by (name(s) of person(s) making statement).
___________________________
(Signature of notarial officer)
(Seal, if any)
___________________________
Title (and Rank)
[My commission expires: ______]
IV. For witnessing or attesting a signature:
State of ___________________________________________
(County) of ________________________________________
Signed or attested before me on (date) by (name(s) of person(s)).
___________________________
(Signature of notarial officer)
(Seal, if any)
__________________________
Title (and Rank)
[My commission expires: ______]
V. For attestation of a copy of a document:
State of ___________________________________________
(County) of ________________________________________
I certify that this is a true and correct copy of a document in the possession of ________________________________________.
Dated ___________________________
___________________________
(Signature of notarial officer)
(Seal, if any)
___________________________
Title (and Rank)
[My commission expires: ______]
456-B:9 Notarial Acts Affected by This Act. This chapter applies to notarial acts performed on or after its effective date.
456-B:10 Uniformity of Application and Construction. This chapter shall be so interpreted to make uniform the law among those states enacting it.
456-B:11 Short Title. This chapter may be cited as the Uniform Law on Notarial Acts.
118:11 Reference Changed. Amend RSA 137-H:4 to read as follows:
137-H:4 Execution and Witness. The document set forth in RSA 137-H:3 shall be executed by the person making the same in the presence of 2 or more subscribing witnesses, none of whom shall be the person’s spouse, heir at law, attending physician or person acting under the direction or control of the attending physician, or any other person who has at the time of the witnessing thereof any claims against the estate of the person, and shall be acknowledged pursuant to the provisions of RSA [456 or RSA 456-A] 456-B. If the person making the document is a resident of a health care facility or patient in a hospital, no more than one witness may be the health care provider or such provider’s employee.
118:12 Application; Penalty for False Representation Added. Amend RSA 455-A:2 to read as follows:
455-A:2 Application.
I. Any person applying to be a justice of the peace shall indicate on the application whether he or she has been a registered voter in this state for at least 3 years immediately preceding the date of application. The applicant must sign a written statement under oath stating [as to] whether the applicant has ever been convicted of a crime that has not been annulled by a court, other than minor traffic violations. The applicant shall be endorsed for appointment by 2 justices of the peace and a registered voter of this state.
II. A person shall be subject to a civil penalty not to exceed $1,000 if he or she negligently or recklessly makes a material false representation on the application form when applying for a commission as a justice of the peace. A person is guilty of a class A misdemeanor if he or she purposefully or knowingly makes a material false representation on the application form when applying for a commission as a justice of the peace. The civil penalty shall be imposed in the same manner as set forth in RSA 455:16.
118:13 Repeal. The following are repealed:
I. RSA 455:5 - 455:10, relative to notaries public and certain duties of the secretary of state.
II. RSA 456, relative to the Uniform Acknowledgment Act.
III. RSA 456-A, relative to the Uniform Recognition of Acknowledgments Act.
118:14 Effective Date. This act shall take effect January 1, 2006.
(Approved: June 15, 2005)
(Effective Date: January 1, 2006)