In order to be record notice (“constructive notice”), the instrument must be acknowledged (or proved by a jurat) and signed by the person granting or holding the interest in the real estate. For example, the mortgagor signs the deed of trust, the owner signs the builders and mechanics lien contract, the landlord signs the subordination agreement, etc.
If it is not properly acknowledged by the mortgagor or grantor, it is not record notice, even if the county clerk accepts the instrument and filing fees. The instrument must contain a correct legal description of the land. If it does not contain a correct legal description of the land, a correction and refiling of the deed or mortgage is effective record notice only from the date of the refiling. If a mortgagee erroneously files a release of mortgage, the mortgage is no longer constructive notice.
The statutory forms of acknowledgement include the following:
a. Short Form Acknowledgement:
“State of
County of
This instrument was acknowledged before me on (date) by (name or names of person or persons acknowledging).
(Signature of officer)
(Title of Officer)
My commission expires: ”
b. Ordinary (Long Form) Acknowledgement:
“State of
County of
Before me (here insert the name and character of the officer on this day personally appeared , known to me (or proved to me on the oath of or through (description of identity card or other document )) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed.
(Seal) Given under my hand and seal of office this day of , A.D., .
(Signature of officer)
(Title of Officer)
My commission expires: ”
The acknowledgment must be dated on or after the date the document is executed and before the document is recorded.
Because of the greater possibility of error in the Long Form Acknowledgment, most Banks prefer to use the Short Form.
An acknowledgment in another state may be completed by a notary public qualified in that state. If the state (outside of Texas) in which the notary public acts does not require a notary a seal of office, the acknowledgment may be completed without a seal.
Persons authorized to complete an acknowledgment outside of the United States include a minister, commissioner or charge d’affaires of the United States, a consul-general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States or a notary public authorized to administer oaths in the jurisdiction where the acknowledgment is taken. An acknowledgment completed by a notary outside of the United States. An acknowledgment by a notary public in a foreign language must have an English translation and apostille. It is customary to include an apostille with an acknowledgment taken by a foreign notary public.
Where there are multiple owners of the property a Texas Signature Real Estate Addendum may be used for additional signatures and acknowledgments. A form is located at the end of this Chapter.