Is it proper for the field landman to act as a notary and notarize a lease (after he has just negotiated the terms, drafted the document and had the lessor sign the lease)? Assuming, of course, it is being taken for a third party and the landman is not a party to the lease.
Short answer: yes. Read on for more discussion and exceptions to the rule.
In general, a notary is disqualified (may not legally perform a notarial act – fancy words meaning notarize) if he receives a value or an interest in the transaction in excess of his normal fee OR if he is a party to the transaction. The notary should be a disinterested party.
Some might argue that the landman is being paid to buy the lease and therefore has an interest in the transaction. I would counter that he gets paid the same whether he notarizes it or pays someone else to notarize it.
Some might argue that the landman is not a disinterested party because he is being paid to complete the deal. I would counter that he already has completed the deal (a lease is enforceable with or without a notary – we only get a lease notarized because it is a requirement for recording).
When I was a pup landman a lawyer friend said to me “no lease has ever failed because of a bad notary.” I doubt that he really knew enough to make such a broad statement but I must agree that we can find no evidence that he was wrong.
So while I have never notarized a lease that I negotiated and never had any trouble finding a notary in a timely manner, I can find nothing of substance that would justify a rule against it.
My first landman boss told about a lease he took and did not get notarized, planning to come back later and meet at the bank for a notary. The lessor changed his mind and refused to meet at the bank, wanting to void the deal. Needing to get the lease recorded, my boss went back to the house with a notary in tow to discuss the lease. He did not introduce the extra landman as a notary. Signed lease in hand, he again asked the lessor if he would go to the bank for a notary. The lessor said no. My boss said, “but here’s the lease and you did sign it didn’t you?” The lessor said “yes” and the notary was able to notarize the lease.