Notarial Practice & Malpractice in the Philippines: Rules, Jurisprudence, & Comments

By Jose Y. Dalisay III

This book will help notaries navigate their way around problem areas. It will also help lawyers and the public assail or defend the validity of public documents, and expose notarial malpractices. Thus, it is a step in making notarial practice in the Philippines more competent and truly dependable.

• Language: English
• Publisher: Anvil Publishing, Inc.
• Release date: Sep 2, 2014
• ISBN: 9789712730504

Book preview

NOTARIAL PRACTICE

& MALPRACTICE

IN THE PHILIPPINES

RULES, JURISPRUDENCE, & COMMENTS

ATTY. JOSE Y. DALISAY III

Notarial Practice & Malpractice in the Philippines

Rules, Jurisprudence, & Comments

Copyright © 2014 by Jose Y. Dalisay III and Anvil Publishing, Inc.

All rights reserved.

No part of this book may be reproduced in any form

or by any means without the written permission

of the copyright owners.

Published and exclusively distributed by

ANVIL PUBLISHING, INC.

7th Floor Quad Alpha Centrum Building

125 Pioneer Street

Mandaluyong City 1550 Philippines

Telephones: ([phone]/55-57 locals: 809/813/816

[e-mail]

Fax: [phone]

www.anvilpublishing.com

ISBN: 978-971-27-3050-4 (e-book)

Book design by Ariel Dalisay (cover) and Je J. Garrero (interior)

Version 1.01.

MESSAGE

Many people, lawyers not excluded, take notarization for granted, treating it as a ritual or an expense to be minimized or, for unscrupulous persons, an investment to profit from.

Notarization of documents performs an important role in our legal and commercial systems and must be taken seriously if we are to have our legal and business documents taken at face value and accepted in due course of business and in legal proceedings. A credible system of notarization will put us on better footing to transact and conduct business in the global market.

This book hopes to provide lawyers and notaries public a guide to the proper performance of notarial acts. The jurisprudence cited from 1902 to July 2013 and the examples given will indeed provide good reference material.

As a practicing lawyer, notary public and law professor, Atty. Jose Y. Dalisay III is quick to see that the traditional law curriculum leaves notarization largely ignored, and has decided to write a guidebook on the subject matter.

To compañero Jess, my congratulations and thanks for this worthy addition to every Filipino lawyer’s professional library.

Atty. Ma. Charito Protasio Cruz

President, 2012 – 2013

Philippine Bar Association

TABLE OF CONTENTS

Messages

Preface

Historical Background

WHO MAY QUALIFY AS NOTARIES

Lawyers in Good Standing

Shari’a Lawyers as Notaries Public

Government Lawyers as Notaries

Limitations/Prohibitions on Notaries Ex-Officio

Impersonation of a Notary

THE NOTARIAL COMMISSION

Notarization Without a Commission

Expired Commission

Notarization Beyond Territorial Jurisdiction

TYPES OF NOTARIAL ACTS

Affirmation or Oath

Jurat

Use of Jurat in Lieu of Acknowledgment

For Jurat, Document Must Not Be Pre-Signed

Acknowledgment

Copy Certification

THE NOTARIAL REGISTER & NOTARIAL REPORTS

Non-Entry in Notarial Register

Failure/Refusal to Submit Notarial Book and Documents for Inspection

Missing/Substituted Entries, and Non-Submission of Notarial Reports

Giving Documents the Same Number

Using Somebody Else’s Notarial Register

THE DRY SEAL

THE NOTARIAL CERTIFICATE

NOTARIAL FEES

PROBLEM AREAS

No Notary Under a Tree

No More Cedulas?

Read First, Before Certifying

Gap Between Execution and Notarization

How to Assail a Notarized Document

Invalid Notarization: Effects

Illegal Contracts

Notarization of Simulated Contracts

Notarization of Incomplete Document

Appearing Before Oneself

Witnesses: When Required

Resurrecting the Dead, Seeing the Absent

Impostors and Forgeries

Fictitious Persons

Caution: When Illiterates Sign Documents

Preparation and Notarization of Conflicting Documents

Beware of Close Relatives

No Franchising: Never Let Anyone Else Notarize For You

Keep Your Dry Seal and Notarial Registry Safe and Secure!

Perjury: Venue

Tampering With a Public Document

Requirements of Special Laws

The Land Registration Act and Public Land Act

The Civil Code

The Family Code

The Local Government Code of 1991

Notarial Wills

Judicial Affidavit Rule

Documentary Stamps

Realty Installment Buyer Protection Act

Why Settle for One Notary, When You Can Have Two or More?

Acknowledgment of Falsified Deed is Falsification of Public Document

Multiple Signatories Need Not Be Simultaneously Present

Two Deeds in One

He Who Assails a Deed’s Due Execution, Must So Prove

A Notary Public Can Be Disbarred

SUMMARY OF PRESCRIBED PRACTICES

EXTRA STEPS

THE NEAR FUTURE

JURISPRUDENCE CITED

ABOUT THE AUTHOR

PREFACE

Who else can bring the dead back to life, or teleport anyone from across the planet in an instant, to make them sign documents? Who can change the past and the truth, with mere strokes of the pen? The notary public can, in the Philippines. It’s all illegal—once the falsity or fraud is exposed.

The notary public, officially, is an authority figure, but there are some—just like in other honorable professions—who drift down to the netherworld to become some species of lowlife.

It used to be that notaries public merited little respect, as if they were little more than glorified clerks. Many of them held office under trees outside or narrow corridors within various government offices where transactions required the notarization of documents. A small table with a portable typewriter, simple chairs for the notary and the client, the notary’s dry seal embosser, a rubber stamp and its ink pad, and little else, were sufficient for the conduct of business. The notary hardly asked any questions from those who came to have affidavits and other documents notarized, while clients typically asked only how much the notary was going to charge.

Instead of respect, some notaries public earned distrust if not contempt, because of malpractices, whether arising from negligence, incompetence, or fraud. Complaints over these added to the caseloads of the Supreme Court.

Conventional thinking holds that being a notary public is the least appealing among the professional options of a lawyer, apart from being jobless. Notarization holds little or no excitement: It is unchallenging, it brings no glamor and correspondingly not a great deal of wealth. Thus, a lawyer who is confident of his skills as a litigator, ought not waste time becoming a notary public.

In the old days—before 2004—this thinking found support in the fact that one did not even have to be a lawyer to qualify for a commission as a notary public. Under Section 233 of the Revised Administrative Code of 1917, a holder of a law degree may qualify as a notary public.¹ So why should a lawyer step down to the level of law graduates who have not passed the Bar examinations?

This thinking persists to this day, although the Supreme Court has been taking steps to enhance the respectability of the office of the notary public. Since 2004, only lawyers may qualify for appointment as notaries public; the commissions of notaries who were not lawyers were no longer renewed. But lawyers who wish to be so commissioned must prove themselves worthy, by obtaining clearances from the Integrated Bar of the Philippines, the Office of the Court Administrator of the Supreme Court, the office of the city prosecutor, and the regional and municipal trial courts of the city or province where the applicant wants to serve as notary public. Not all lawyers can make it through this gauntlet. Those who succeed, on the other hand, must be diligent and meticulous in their roles as notaries public, because a misstep can have onerous legal consequences—from a mere reprimand, to the suspension or revocation of their notarial commissions, or even their disbarment.

When I decided to petition for a commission as a notary public in Quezon City in April 2013, there were already questions in my mind. After all, the law curriculum does not devote a single non-elective unit to notarial practice, as if to emphasize that law schools intend their students to become lawyers, not lesser creatures called notaries public. For the notarization of my verified petition for a notarial commission, I was charged 200 pesos; only the week before, I had filed a verified petition for the declaration of the absolute nullity of a marriage before the Regional Trial Court in Parañaque City, and the notarization cost only 50 pesos. What are the standard fees, or the ranges from minimum to maximum, per type of notarial act? What are the legal effects of failing to enter the notarization of a document in the notarial register, or of notarization by a person without an active notarial commission? How does one prove that a supposedly public document is a forgery, and that the notary public is fictitious? In what part of the document am I supposed to affix my notarial seal?

Questions like these motivated me to write this book. Novice notaries, law students, law practitioners, and the general public ought to have a reference material on notarial practice. Not having encountered any during my law-student days, I decided to write one. Having had no prior exposure to the ins and outs of notarial practice, except as an affiant, I had to learn the craft and navigate its perils more through research than experience.

The research led to the realization that, contrary to conventional thinking, the notary public is not an inferior lawyer, but simply one who is under-appreciated. It takes knowledge and discipline for the role to be performed with consistent correctness and intellectual alertness, not just ritual solemnity and mechanical precision. The cases featured in this book provide ample illustrations of malpractices, negligence, and lapses to be avoided.

Some people have encountered notaries public, real or fake, who schemed or connived to defraud them, and some notaries have been victimized by tricksters who sought to legitimize their frauds through notarization. To strengthen public trust and reliance on notarized documents and notarial acts, malefactors must be weeded out of the system on a consistent and continuing basis. Much of the exploitation, however, can be prevented by knowing and scrupulously following the rules of notarial practice—even if the reasons for some of them are not clear even to lawyers, and even if they cause inconvenience. It was with this thought in mind that I essayed the writing of this book.

For this book, I traversed over a century’s worth of cases—more than 240 in all—to be able to see how, why, and to what extent the laws and jurisprudence have shifted or evolved. These cases indirectly tell the story of how far we have retrogressed from being a society where palabra de honor or word-of-honor was so sufficient as to render a subsequent demand to sign a written version an insult, to one where even public documents may be disowned or assailed quite easily, sometimes at the expense of the notary.

This book covers quite a lot of ground, but is far from complete. It is meant to supplement the basic knowledge gained from a careful reading of the 2004 Rules on Notarial Practice. I regard this as a work in progress; some portions need additional meat, and there will be need for updates and expansion as our laws, rules, and jurisprudence continue to evolve. But I have to get it out now, so that it can be of immediate use to commissioned notaries, notaries ex-officio, other lawyers, students of law, and the transacting public.

Atty. Jose Y. Dalisay III

Notary Public, Quezon City

August 2013

---

1

Section 233. Qualifications for Appointment. – To be eligible for appointment as notary public, a person must be a citizen of the Philippines (or of the United States) and over twenty-one years of age. He must, furthermore, be a person who has been admitted to the practice of law or who has completed and passed in the studies of law in a reputable university or school of law, or has passed the examination for the office of justice of the peace or clerk or deputy clerk of court, or be a person who had qualified for the office of notary public under the Spanish sovereignty.

HISTORICAL BACKGROUND

The office of the notary royal (escribano real) and notary public (escribano publico) in the Philippines dates back to the Spanish colonial era. A royal decree, the Ley del Notariado de 15 de febrero de 1889 , extended to the colony the 1862 Notarial Law of Spain. This law took effect on 1 July 1889, although its regulations were issued only on 11 April 1890. On 3 October 1889, general instructions for drafting instruments subject to record in the Philippine Islands were issued; these were modified by the succeeding American military authorities in September 1889 and February 1900.

Registered notaries public were the only officials before whom written contracts, obligations, and wills may be executed, although other notaries who were competent and of good reputation may attest all extrajudicial papers.² When local headmen were re-titled as municipal captains by royal order of 17 July 1894, they were also given notarial authority.³

A will executed before a gobernadorcillo or town headman in lieu of an escribano or notary, where a notary was available in the seat of the district or province less than two leguas⁴ away from the town, was held to be completely void as a public document. This was because the gobernadorcillo lacked the requisite authority. The subsequent registration of the will in a notarial register could not remedy the nullity.⁵

Under the Notarial Law of Spain, a notary was required to ascertain the identity of the parties to an instrument subject of notarization. The law, however, presumed that the notary complied with this command.⁶

Recognition of the office of the notary public was carried over to the succeeding American colonial period. Act No. 136 of the Philippine Commission, which delineated the jurisdiction of the courts of the Philippine Islands and the qualifications of judges, also regulated the appointment and functions of notaries public. Act No. 136 (the Judiciary Law) took effect on 16 June 1901.

Next came Act No. 190, Section 331 of which stated that every instrument conveying or affecting real property situated in the Philippine Islands, acknowledged or proved and certified as provided by law prevailing in the Philippine Islands, may, together with the certificate of the acknowledgment or proof, be read in evidence in an action or proceeding without further proof. Otherwise phrased, a document duly acknowledged before a notary public under his hand and seal, with his certificate thereto attached, is admissible in evidence without further proof of its due execution and delivery, unless and until some question is raised as to the verity of said acknowledgment and certificate.⁷

The enforcement of the Spanish Notarial Law in the Philippines was repealed with the enactment of Act No. 496, or the Land Registration Law.⁸ The Land Registration Law was approved on 6 November 1902 and took effect on 1 January 1903. Documents in the possession of notaries were required to be filed with the general archives of the insular government in Manila; notaries ceased being the public custodians of such documents, and lost the power to give certified copies thereof.⁹

On 26 January 1912, the Philippine Legislature enacted Act No. 2103, governing the acknowledgment and authentication of documents without the Philippine Islands. Without covered any state, territory, or dependency of the United States of America. Under Section 1, an instrument or document shall be considered authentic if the acknowledgment and authentication were made according to the following requirements:

The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgment of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state.

The certificate of the notary public or the officer taking the acknowledgment shall be authenticated by the country clerk or his deputy, or by a clerk or deputy clerk of any court of record of the county, municipality or judicial district wherein the acknowledgment is taken, or by the secretary of state, executive secretary, or other similar functionary of the state, territory, the District of Columbia, or dependency of the United States, as the case may be. The officer making the authentication shall certify under the seal of his office or court that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine.

On 1 July 1916, Act No. 2657 (the Administrative Code), took effect. Several of its sections in Chapter 11 regulated notarial practice. Sections 245 and 246, for example, required the keeping of a notarial register, the recording therein of all notarial acts performed, and the monthly submission of reports to the clerk of court of the province where the notarial commission applied.¹⁰ Section 249 enumerated the grounds for the revocation of a notarial commission.¹¹

On 17 March 1917, the Revised Administrative Code of 1917 became law, as Act No. 2711. Section 1845 of this law gave certain officials limited notarial authority ex officio—

Section 1845. Authority of Officers to Administer Oaths and Take Testimony. – The Director of Lands, and the Chiefs of division in the Bureau of Lands, are authorized to administer oaths and take acknowledgments in matters of official business, and to take testimony in official investigations conducted under the authority of the laws and regulations relating to the Bureau of Lands.

A local land officer, and any person designated by the Director of Lands as friar-land agent, chief of a survey party, or inspector of the Bureau of Lands may administer oaths and take acknowledgments as aforesaid, and, when thereunto deputed by the Director of Lands, may exercise the same authority to take testimony as other officers hereinabove named.

Later, the list of officials authorized to perform limited notarial acts ex-officio was expanded to include the Assistant Director of Lands and the mining recorder.

Section 232 governed the appointment of notaries public.

Section 233 dealt with qualifications for appointment.

Section 234 provided for disqualifications of notaries, among them moral turpitude.

Section 245 of the Revised Administrative Code of 1917 required every notary public to keep a notarial register, containing a record of all his official acts as notary. The notary was also required to supply a certified copy of the record or parts thereof to any person who applied for it and paid the legal fee.

Sections 246 and 247 required the notary public to forward his notarial register, for safekeeping, to the Clerk of Court of the Court of First Instance of the province or city where he exercises his office.

As late as 1994, the appointment, qualifications, jurisdiction and powers