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IL Senate Bill 546

Legislation

State: Illinois
Signed: October 03, 2008

Effective: June 01, 2009
Chapter: Public Act 095-0988

Summary

Establishing a 4-year pilot program, SB 546 requires Notaries to create a “Notarial Record” for any qualifying “Document of Conveyance” affecting or purporting to affect title to residential real property in Cook County, Illinois, from June 1, 2009 through June 30, 2013. The new law specifies the entries for the Notarial Record, including a thumbprint, prescribes a statutory form and provides for the proper disposition of the Notarial Record. The new law allows Notaries who create a Notarial Record to charge $25 for the notarization.

Affects

Amends Sections 3-101, 3-102, 3-104, and 6-102 of the Illinois Compiled Statutes.

Changes
  1. Defines an identification document as a document that is valid at the time of notarization and that is issued by a state or federal government agency bearing a photograph and signature.
  2. Requires a Notary to create a “Notarial Record” of each notarial act performed in connection with a Document of Conveyance affecting or purporting to affect title to residential real property in Cook County, Illinois. (Note: this provision is required of any Illinois Notary who notarizes a document of conveyance affecting or purporting to affect title to real property in Cook County, not just Notaries residing in Cook County.)
  3. Defines a “Document of Conveyance” — and excludes certain deeds from the definition — and “Residential Real Property” as a building or buildings located in Cook County, Illinois and containing one to 4 dwelling units or an individual residential condominium unit.
  4. Specifies that each Notarial Record performed in conjunction with a Document of Conveyance must include: (a) The date of the notarial act; (b) The type, title or a description of the Document of Conveyance and the property index number and common street address of the Residential Real Property; (c) The signature, printed name and residence street address of each person whose signature is being notarized and a certification by the person which states “The undersigned grantor hereby certifies that the real property identified in this Notarial Record is Residential Real Property as defined in the Illinois Notary Public Act.” (d) A description of the satisfactory evidence reviewed by the notary to identify the person whose signature is notarized on the Deed of Conveyance; (e) The date of notarization, (f) the fee charged for the notarial act, (f) the Notary’s home or business phone number, (h) the Notary’s residence street address, (i) the Notary’s commission expiration date, (j) the correct legal name of the Notary’s employer or principal and the business street address of the Notary’s employer or principal; and  (k) a thumbprint captured in a physical or electronic medium of each person or agent acting as attorney in fact on behalf of a principal signing the Document of Conveyance. (Note: if a signer is physically unable to leave a right thumbprint, then a print of the left thumb or any available finger may be taken as long as the Notary describes the circumstances in the Notarial Record.)
  5. Prescribes that the Notary shall deliver the original Notarial Record to the Notary’s employer or principal if the notarization is performed for an title insurance company or agent, a financial institution or attorney employing the Notary, within 14 days after the notarization is performed for retention by the employer for 7 years as part of the employer’s or principal’s business records. In all other circumstances, the Notary must deliver the original Notarial Record to the Recorder of Deeds of Cook County ($5 filing fee) within 14 days for retention by the Recorder for 7 years.
  6. Prescribes a statutory form for the Notarial Record and requires that the Notarial Record be in substantial compliance with this form.
  7. Prohibits the Notary from making or retaining copies of the original Notarial Record, but allows the Notary’s employer to retain copies of Notarial Records as part of its business records.
  8. Authorizes a court of competent jurisdiction to subpoena a Notarial Record or other medium containing the thumbprint, exempts such Record from disclosure, inspection and copying under the Freedom of Information Act, and prohibits the Record from being made available to any other party other than a party in succession of interest to the party maintaining the Notarial Record or other medium.
  9. Stipulates that a Notary’s failure to comply with the procedure for making a Notarial Record under the law shall not affect the validity of the transaction, absent of fraud.
  10. Provides that if there is a breach of security of a Notarial Record, the Recorder shall notify each signer in writing and in the most expedient time possible and without unreasonable delay, consistent with any measures taken by the Recorder to determine the scope of the breach and to reestablish security, confidentiality and integrity of the Recorder’s data system. “Breach” is defined as an unauthorized acquisition of the fingerprint data contained in the Notarial Record.
  11. Permits Notaries to charge $25 for any notarial act that involves creating a Notarial Record.
  12. Stipulates that the provisions of the law relating to creation of the Notarial Record shall not apply after July 1, 2013.
Analysis

Senate Bill 546 blazes a new trail in efforts to curb real property fraud in Cook County, Illinois. The idea of a Notary creating an independent record of a notarial act (i.e., a journal entry) is not new; neither is the Notary taking a thumbprint of each signer for this record (California). However, the “Notarial Record” created under a new 4-year pilot program by SB 546 requires more comprehensive information than a typical journal entry; it may not be kept by the Notary; and it must be delivered either to the title insurance company or agent, financial institution or attorney employing the Notary, or to the Cook County Recorder of Deeds within 14 days of the notarization. Any Illinois Notary who notarizes a Document of Conveyance of residential real property that is situated in Cook County must complete a Notarial Record for the conveyance; therefore this new law could impact anyone of the almost 200,000 Notaries in Illinois. The Notary will have to look carefully at the legal description of the property in a Document of Conveyance to verify that the property is located within Cook County in order to determine whether a Notarial Record must be created. In addition, the Notary will have to know whether the deed being transacted qualifies as a “Document of Conveyance.” The new law exempts many types of deeds, including court-ordered and court-authorized conveyances, judicial sale deeds, deeds transferring ownership of property to a trust where the beneficiary is the grantor, deeds from grantors to themselves that are intended to change the nature or type of tenancy, deeds from a granter to the grantor and another person that are intended to establish a tenancy between the grantor and the other person, deeds in lieu of foreclosure and deeds transferring ownership to a revocable or irrevocable grantor trust where the beneficiary includes the grantor. In light of these very technical requirements, it is surprising that Senate Bill 546 does not mandate education for Notaries. It is difficult to imagine that the average Notary will know how to create and file a Notarial Record without training.

Read Senate Bill 546.

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