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Happy Trails to You, Apostille We Meet Again!

by Nick Long |

For those of us “of a certain age,” we have fond memories of spending Saturday mornings with Roy Rogers and Dale Evans, as well as Bullet, Trigger, and Nellebelle.  It’s hard to pinpoint exactly what historical time Roy and Dale inhabited, but I have distinct memories of horse and buggies, as well as cars and trucks.  I think I even remember an airplane or two. 

The writers of the Roy Rogers television series didn’t allow themselves to be restricted to a particular time in telling a good story and took advantage of available technology to mete out justice to the black-hatted bad guys.  In our own time, we are called upon to serve buyers and sellers who travel a great deal more than in “those thrilling days of yesteryear.”  If you have not already been called upon to secure the signature of a participant in a real estate closing who is in another country, it is only a matter of time.

We at LM Title field calls regularly asking for advice on getting documents properly notarized in foreign countries or for recording in other nations. To assist you in making the necessary perspective shift, here is a review of some basic law and helpful practice pointers regarding preparing documents for international acknowledgment for recording here or for recording in another country.

For a document that will need to be recorded in North Carolina: N.C.G.S. §47-2 provides that any “instruments and writings as are permitted or required by law to be registered may be proved or acknowledged before any one of the following officials . . .of foreign countries: Any judge of a court of record, any clerk of a court of record, any notary public, any commissioner of deeds, any commissioner of oaths, any mayor or chief magistrate of an incorporated town or city, any ambassador, minister, consul, vice-consul, consul general, vice-consul general, associate consul, or any other person authorized by federal law to acknowledge documents as consular officers.”

That sounds simple enough, but of course, the notarization is just the first step.  Remember that notaries and even judges and clerks of court in foreign nations can have wildly different educational backgrounds and job descriptions, depending on the country. 

To assist with the varied individuals who may be asked to acknowledge a signature in a foreign country, a system has been developed to certify that the official had the power to take the acknowledgement at the time the instrument was signed.  This is called an “apostille”. The US State Department has an Office of Authentication which will answer specific questions. Their website is US Department of State—Bureau of Consular Affairs—Office of Authentications. You can also reach them by phone: 202-485-8000.

There is no statutory requirement that you must get an apostille for every “foreign” acknowledgment, but the presence of an apostille will go a long way to avoiding any disputes as to the validity of the “foreign” acknowledgment.  If you are faced with recording a document which has been acknowledged by a foreign official, you should check with your title insurance company to be sure the proposed acknowledgment will be acceptable.  You may also need to have the Register of Deeds who will record the document to review the proposed “foreign” acknowledgment.

Another possible solution to getting your document acknowledged in another country is to rely on the consular services of the US State Department. A US Consul acts as a Notary Public abroad, notarizing affidavits, acknowledgments and other legal documents to be used in the U.S. only. The signature of a US Consul is not recognized in most foreign countries on documents to be used and recorded in a foreign country. You can locate the offices of US Consuls by looking at https://www.usembassy.gov/. There is a fee associated with having a US Consular official notarize a document, and the fee varies from country to country.  You also should be aware that most consular offices require a prior appointment in order to provide an acknowledgment for a US Citizen and there could be a wait to get an appointment at a consular office.  For specific questions regarding getting foreign documents authenticated for use in the United States by a US Consular official, visit this website.

If your client is overseas with the military, you are in luck. Military personnel have access to the Judge Advocate General’s staff in their location. The JAG Corps is very familiar with the necessities for getting a document acknowledged and should provide the necessary assistance to you and your client.

For a document executed in North Carolina that will need to be recorded in a foreign country: Article 34 of N.C.G.S. Chapter 66 is your guide. Only a document with an original seal and signature may be authenticated. Prepare the acknowledgement as you would normally for the transaction, (in English) using the Section 10B-41(a) notary form, (as the statute specifically refers to a Chapter 10B notary certificate). Be sure the local notary uses his or her name exactly as is shown on the notary seal and as it is on record at the Secretary of State’s office (as that office will be comparing signatures, etc. to their records).

Once everything is correct, send the document to:
NC Authentication Office
NC Secretary of State
PO Box 29622
Raleigh NC 27626-0622

Include a cover letter, money order or check, and the original documents with all certifications attached. Here is a sample cover letter posted by the NC Secretary of State’s office. The processing fee is currently $10.00 (in US dollars) per document to be processed.  Once you get the paperwork back from the NC Secretary of State, it is ready to send to the foreign country—you don’t have to involve the US State Department.

For more detailed information, look at the NC Secretary of State’s website, especially the FAQ section.

If all else fails, feel free to contact LM Title Agency.  We will work with you to resolve your particular problem.

About the Author

Nick Long

919.585.5642 | nick@lmtitle.com

 

Nick is Vice President of Underwriting for LM Title Agency, LLC, a wholly owned subsidiary of Lawyers Mutual.  Prior to joining LM Title, Nick worked for a national underwriter as their NC State Counsel.  Since 2003, Nick has worked for a number of different NC title companies.  Before that, Nick spent 23 years in private practice handling residential and commercial transactions and real estate litigation.  Nick has served as Chair of the North Carolina Bar Association’s Real Property Section Council and was a founding board member for LiensNC,LLC.  He is currently on the Executive Board of the NC Land Title Association and has been recognized by the NCBA as a Citizen Lawyer. Contact Nick directly at 919-585-5642 or nick@lmtitle.com.

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