March 8, 2020
I got a great question from a client this past week. He had a seller who was located in Mexico for his job. The facility at which he worked was nowhere near a US Embassy or Consulate, and the drive to the Embassy or Consulate was somewhat dangerous. How could he get a valid and proper signed and notarized deed back to Ohio for the closing?
I thought: What a great chance for a blog entry on foreign execution and acknowledgement of recordable instruments (deeds, mortgages, etc.) in Ohio! (How exciting is my life!)
First , when I started my career in real estate law, most (not all) instruments required two witnesses and a notary public to sign in order for the instrument to be recordable in Ohio. Since then, the requirement for two witnesses has been dispensed with, so all that is need for a execution of a recordable instrument in Ohio is a signature of the owner and an acknowledgement (notarization) (there are lots of other requirements as to the form).
Execution and acknowledgement in other states
Then, O.R.C. § 5301.06 provides:
All deeds, mortgages, powers of attorney, and other instruments of writing for the conveyance or encumbrance of lands, tenements, or hereditaments situated within this state, executed and acknowledged, or proved, in any other state, territory, or country in conformity with the laws of such state, territory, or country, or in conformity with the laws of this state, are as valid as if executed within this state.
So, for other states and territories of the United States, meeting the execution requirements in that state (usually just a signature and an out-of-state acknowledgement) is just as valid as one from Ohio.
Execution and acknowledgement in foreign countries
Further, the above-statute provides that an acknowledgement from another country is valid if made in conformity with the laws of the other country.
That means that the Ohio title attorney signing off on the instrument would need to know the law the other country, which they will not (and since it is written in their language, would be difficult to research and discern with the degree of certainty required to assure quality transfer of title).
In this instance, the Mexican notary required an expensive (relatively) translation of the instrument into Spanish before acknowledging that instrument, and the Ohio title attorney would not accept the dual-translations in the document for recording. For these reasons, it was a becoming a disaster before the matter came to our firm.
That takes us to the second option for execution outside of the United States: O.R.C. § 147.51:
Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments, in addition to any other persons authorized by the laws and regulations of this state:
(A) A notary public authorized to perform notarial acts in the place in which the act is performed;
(B) A judge, clerk, or deputy clerk of any court of record in the place in which the notarial act is performed;
(C) An officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States department of state to perform notarial acts in the place in which the act is performed;
(D) A commissioned officer in active service with the armed forces of the United States and any other person authorized by regulation of the armed forces to perform notarial acts if the notarial act is performed for one of the following or for a dependent of one of the following:
(1) A member of the merchant marines of the United States;
(2) A member of the armed forces of the United States;
(3) Any other person serving with or accompanying the armed forces of the United States.
(E) Any other person authorized to perform notarial acts in the place in which the act is performed.
As a practical matter, I just tell clients to get themselves to a US Embassy or Consular office. It is best to call in advance and make an appointment (a) to assure they perform these services at the office you intend to visit, (b) to assure a notary is present at the time you show up, and (c) to assure the Embassy or Consulate is open at that time. Further, embassies and consulates are used to performing these services for American citizens and residents. This procedure is blessed by Section (C), above.
Then, members of the Armed Forces and their families have the additional option of going to a military base and having “a commissioned officer in active service with the armed forces of the United States and any other person authorized by regulation of the armed forces to perform notarial acts” performing the acknowledgement.
How about the new electronic notary process?
So, I thought when the problem was presented to me, wouldn’t this be a perfect use of the e-notary law (O.R.C. § 147.591, et seq.)?
Well, no, it would not, as I would learn.
Although the e-notary situated in Ohio can perform valid acknowledgements remotely, including with signers sitting in other states, he has no authority to acknowledge an instrument for a principal sitting outside of the “territory of the United States” O.R.C. § 147.64 (C). Well, that threw cold water on that idea!
Corporate and LLC signatures
If the owner of the property in question is a corporation or a limited liability company, it may be possible to sign a corporate resolution (not requiring a notary) authorizing someone in the US to sign and have acknowleged the recordable instrument, thus saving the need to drive to an Embassy or Consulate.
So, in short, if you are outside of the United States or its territories, and want to execute and properly notarize a real estate instrument for recording in Ohio, (a) have the documents emailed to you where you are, (b) print them out, (c) get thee to an Embassy or Consulate and (d) Fed Ex them back to the closing agent in Ohio (subject to an escrow agreement or such other assurances as your attorney advises). If you are in a country without diplomatic relations with the United States, you may be out of luck.