Volume 9 Number 2




Title Tips by Tute

Volume 9, Number 2


Dear Tute:


We were asked to record an instrument in Chesterfield County.  The notary acknowledgment of one party says it was taken in England, but the notary applied a Virginia notary seal.  Can a Virginia notary take acknowledgments outside of the Commonwealth?


                                                            - Over the Ocean and far away


Dear Ocean:


            I volunteer to go to England and look for the notary to verify all the necessary facts!  Please send the particulars and my ticket.  Concorde service ends soon, and I really would like to try it once . . . but if you're not in a hurry, I understand the QE2 is still running, and Cunard plans to add the Queen Mary 2 this year . . . that would be nice too.


            To answer the question you asked, yes, a Virginia notary, if outside the Commonwealth, still retains the ability to take acknowledgments for documents intended to be recorded in Virginia.  The statute says:


    47.1-13. Jurisdiction; powers outside the Commonwealth. The powers of any notary commissioned pursuant to this chapter of this title may be exercised anywhere within the Commonwealth of Virginia. 

    Any notary commissioned pursuant to Chapter 2 ( 47.1-3 et seq.) of this title may likewise perform notarial acts outside the Commonwealth, where such notarial acts are performed in connection with a deed or other writing to be admitted to record in the Commonwealth of Virginia.


Tute finds it an extraordinary coincidence that a Virginian, temporarily in the United Kingdom, found it possible to not only locate an American notary public, but one commissioned within the Old Dominion.  Has anyone inquired with the Secretary of the Commonwealth as to the validity of the notary's commission, and their office of record? 


            Another possibility that occurs to your ever-credulous correspondent is that the deed was prepared thinking the signer would be in the United Kingdom.  Fortuitously, the signer returned to the Commonwealth in time for the transaction.  Lackadaisically, the notary did not notice the jurisdiction typed on the deed was not correct.  It is an obligation of the notary public to state the place in which the acknowledgement was taken, see 47-16(A), which says:  "Every notarization shall include the date upon which the notarial act was performed, and the county or city and state in which it was performed."  (emphasis added)


            For those readers who may have missed the news, Tute will also take this occasion to mention a recent statutory change.  While notaries have always been held to a "reasonable" standard of care in the performance of their duties, in 2002 the General Assembly provided specific direction for the means of identification of parties to the transaction.  Unless such person is known by the notary, identity shall be ascertained by examination of one or more of the following documents: a United States Passport, a certificate of United States citizenship, a certificate of naturalization, an unexpired foreign passport, an alien registration card with photograph, a state-issued driver's license or state-issued identification card or a United States military card. 47. 1-14.


            When can you get me those tickets?







Dear Readers:


            Tute regrets to report the passing of another feature of life in the Commonwealth that makes residing here so wonderful.  In January, I saw an article appearing in the Richmond Times Dispatch that began with the following line:  "Can you say feoffees?"  When was the last time you saw that word in your daily newspaper, much less in the lead sentence?


            The title of the article was "Trustees Tradition Comes Under Siege," written by Andrew Petkofsky, appearing in the January 2, 2003 issue.  If you missed it, you should find a copy.  It contained a wonderful snapshot of a fairly common process early in Virginia history.  There were eccentric old time residents, modern conservatives with no sense of history, and, for the title examiner, a synopsis of the legislative enactments affecting the Yorktown waterfront.


            Should the York County Board of Supervisors imitate the actions of the Town Council of Colonial Beach in the 1990s, and sell to a developer portions of its waterfront, which was to be held in trust for the public, here are some of the highlights from its history as quoted from the Times-Dispatch:


The first two Yorktown trustees, originally referred to as "feoffes" in legislative documents, were appointed by the county court in 1691 to fulfill requirements of a General Assembly measure that aimed to establish towns in various counties. Their job was to own the 50 acres designated as the town, to subdivide it, and to sell it off in parcels to private owners.


That original town land did not include a "low beach" that was considered to have no value, according to a history of the trustees written in 1999 by former York County Attorney William M. Hackworth.


But in 1738, the assembly gave the "feoffees" ownership of the previously overlooked five waterfront acres. The feoffees were charged in the 1738 legislation to keep the land "as and for a common, for the use of the inhabitants of the town, from henceforth, forever."


The legislation apparently has helped the trustees persist over centuries of change and evolution. While similar bodies formed in other counties faded into the mists of history, the Yorktown Trustees have been preserved by multiple acts of the General Assembly.


Yorktown was actually incorporated as a town by the assembly in 1786, and was run by a mayor, aldermen and a town council until the town was "allowed to go defunct" after 1793, according to the Hackworth report.


In 1806, the trustees were granted the governmental powers of protecting property in the town "against fire or other accident," to establish markets, to repair streets and alleys, remove nuisances "and for preserving, in all other respect, good order in the town."


In 1824 after a period without trustees, the General Assembly appointed new ones, gave them general police powers and decreed the town's "freeholders and house-keepers" would elect their successors, Hackworth reported.


The General Assembly appointed new trustees after the Civil War, and the institution continued. Along the way, the current system of judicial appointment was established and maintained.


            Del. Melanie Rapp, the Republican legislator who represents York County in the Virginia House of Delegates, introduced legislation (HB 2807) in the 2003 General Assembly to dissolve the trustees.


According to the newspaper article, Rapp said the government body, whose members are appointed to two-year terms by a circuit judge, had no place in a representative democracy.  She predicted her campaign to get rid of the Yorktown Trustees would have wide popular support once her constituents understood the issue.

"The average citizen does not realize that five unelected people own the beach in Yorktown," Rapp told the newspaper. "When they do, they are not happy about it."


            Tute would never suggest that Delegate Rapp might not understand the difference between a fiduciary (trustee or feoffee) and a politician.  Tute will acknowledge that she is a politician, and her measure to abolish the trustees passed the House 93-5-1, and after reconsideration, passed the Senate 25-9-2.  Being a politician, the overly broad language of this Act was not limited to Yorktown, and so it may also terminate any other trusts whose trustees may have been discretely and competently fulfilling the duties of their office.  It may also illustrate an infringement of the legislative body onto the administration of trusts, historically a judicial function.  One dictionary consulted defines a "feoffee" as "he to whom a fee is conveyed;" a "feoffment" as "a gift of any corporeal hereditaments to another. . . one of the earliest modes of conveyance used in the common law;" and a "feoffee to uses" as a person to whom land was conveyed for the use of a third party . . . one holding the same position with reference to a use that a trustee does to a trust."  Tute is not qualified to speak as to the constitutional ramifications of a bill which seems to have the effect of taking the real property of another without compensation or which ignores the role of the judicial branch of government in the regulation of trusts and trustees.


            The text of the bill, now 2003 Acts of Assembly, Chapter 747, reads:


Whereas, in colonial times, various statutes provided for trustees for certain unincorporated areas, commonly called towns, established for governmental purposes such as the oversight of ports and regulation of commerce (see, e.g., 3 Hening's Statutes, page 53 (1691), and 3 Hening's Statutes, page 186 (1699)); and

Whereas, the Codes of Virginia from 1819 to 1873 recognized the existence of boards of trustees but references to boards of trustees in the Codes of Virginia disappeared thereafter; and

Whereas, the General Assembly has enacted laws relating to trustees for an unincorporated portion of York County, e.g. Chapter 286 of the Acts of Assembly of 1926, as amended; and

Whereas, the colonial practice of relying on appointed trustees for limited governmental purposes has been replaced generally by reliance on elected councils for incorporated towns and elected supervisors for counties and the unincorporated areas in counties; and

Whereas, Article VII, Section 5, of the Constitution of Virginia now requires that the governing bodies of counties, cities, and towns be elected by the people; and

Whereas, the affairs of local government are best addressed and administered by the people's elected representatives and any unincorporated areas located within a county should be governed by the county's elected governing body; now, therefore,

Be it enacted by the General Assembly of Virginia:


1. 1. The property, duties, rights, and contractual obligations of the trustees of any unincorporated area commonly referred to as a town or township are hereby transferred to the board of supervisors of the county in which the unincorporated area is located. Any such unincorporated area is confirmed to be part of the county in which it is located. Any trustees heretofore appointed to serve as trustees for such an unincorporated area are deemed to have completed their service as trustees on the effective date of this act, and any trusts shall be dissolved thereafter. Any such property transferred to the board of supervisors of the county may be used, sold, leased, or otherwise disposed of in the public interest as the board of supervisors shall determine, consistent with the general laws applicable to counties.


            By the way, the pronunciation accepted among the modern trustees was FEE-o-fee.





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