Illinois Notarial Record Law FAQs

   Notarial Record Law In General

What does the Notarial Record law require? The new law requires an Illinois Notary to complete a Notarial Record (see "Notarial Record") for a notarization on every Document of Conveyance (see "Document of Conveyance") transferring or purporting to transfer title to Residential Real Property (see "Residential Real Property") located in Cook County, Illinois.

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Why was the Notarial Record law enacted? The Notarial Record law was enacted to address mortgage fraud in Cook County, Illinois.

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Why does the new law apply only to residential real estate situated in Cook County? The intent of the bill is to address residential mortgage fraud and so the scope of the law is limited to residential real estate.

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Does the Notarial Record law affect only those Notaries commissioned in Cook County? The new law requires any Illinois Notary who notarizes a Document of Conveyance transferring or purporting to transfer the title to certain real property located in Cook County, Illinois, to create and file a Notarial Record. While Notaries commissioned in Cook County, Illinois, may notarize a pertinent Document of Conveyance more frequently than a Notary commission in another county of the state, the new law applies to all Illinois Notaries.

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How long is the requirement to create a Notarial Record for a Document of Conveyance effective? The new law is effective beginning June 1, 2009, through June 30, 2013.

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   Important Terms And Concepts

What is a Notarial Record? The new law defines a Notarial Record as the "written document created by a Notary in connection with a Document of Conveyance." The Notarial Record contains certain informational elements required by statute and the law contains a statutory Notarial Record form.

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What must be included in each Notarial Record? The following information must be included in each Notarial Record: (1) The date of the notarial act; (2) the title, the type or a description of the Document of Conveyance; (3) the property index number (PIN) used to identify the property; (4) the common street address of the property that is the subject of the Document of Conveyance; (5) the signature and printed name and residence street address of each signer; (6) a certification by each signer that 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"; (7) a description of how the signer was identified; (8) the date of notarization; (9) the fee charged for the notarial act; (10) the Notary's home or business phone number; (11) the Notary's residence street address; (12) the Notary's commission expiration date; (13) the legal name of the Notary's employer; (14) the business street address of the Notary's employer; and (15) the right thumbprint of the signer or agent acting on behalf of a principal signer under a duly executed power of attorney, or, if the right thumbprint is unavailable, the print of any available finger and an indication of such on the Notarial Record, or, if the signer or agent is unable to provide a print of any kind, an explanation of the person's physical condition preventing a thumb- or fingerprint from being taken.

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What is Residential Real Property? Residential Real Property is defined in the law as a "building or buildings located in Cook County, Illinois, and containing 1-4 dwelling units or an individual residential condominium unit."

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What is a Document of Conveyance? Under the law, a Document of Conveyance is defined as a written instrument that transfers or purports to transfer title effecting a change in ownership of Residential Real Property. Types of common deeds include a warranty or quitclaim deed.

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Which particular documents affecting Residential Real Property in Cook County must be accompanied by a Notarial Record? Types of common deeds include a warranty or quitclaim deed. Other types of deeds could be included.

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What types of document(s) that transfer Residential Real Property are excluded from the requirement to create a Notarial Record? The following types of deeds are exempt from the requirement for a Notary to create a Notarial Record: (1) court-ordered and court-authorized quitclaim deeds executed pursuant to a marital settlement agreement incorporated into a dissolution of marriage; (2) court-ordered and court-authorized transfers in the administration of a probate estate; (3) a judicial sale deed issued pursuant to proceedings to foreclose a mortgage; (4) a judicial sale deed to execute on a levy to enforce a judgment; (5) a deed transferring residential real estate to a trust where the beneficiary is the grantor; (6) a deed executed by the grantor to him- or herself that is intended to change the nature or type of tenancy by which the grantor owns Residential Real Property; (7) a deed from a grantor to the grantor and another natural person that is intended to establish a tenancy by which the grantor and natural person own Residential Real Property; (8) a deed in lieu of a foreclosure of a mortgage executed to the mortgagee; and (9) a deed transferring ownership to a revocable or irrevocable grantor trust where the beneficiary includes the grantor.

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   Completing A Notarial Record

Must a Notary complete a Notarial Record for every notarization? No. A Notarial Record must be completed for a Document of Conveyance notarized from June 1, 2009, to June 30, 2013, transferring or purporting to transfer title to Residential Real Property in Cook County, Illinois. Certain types of deeds are exempt from the requirement to complete and file a Notarial Record.

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Is a Notarial Record the same as a Notary's journal entry? No. In most basic terms, the Notary's journal is the Notary's record of a notarial act performed that is kept by the Notary while a Notarial Record is completed by the Notary and filed with either the Notary's employer, if the employer is a title insurance company or agent, financial institution or attorney at law, or the Cook County Recorder of Deeds.

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Must a Notary use the statutory Notarial Record form contained in the law verbatim? No. The law allows use of forms that are "substantially" in the form specified in statute.

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How would a Notary accurately describe the satisfactory evidence used to identify a signer in a Notarial Record? While the law is not specific, the NNA recommends that the Notary note if the signer was personally known to the Notary, identified to the Notary upon the oath or affirmation of a credible witness, including the witness' name, or by presentation of an identification document, including a brief description of the document presented.

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By what means may a Notary obtain the grantor's thumbprint? A Notary may obtain the thumbprint by "any means that reliably captures the image of the finger in a physical or electronic medium." The Notary may use an "inkless" thumbprint pad to obtain the grantor's thumbprint on a paper Notarial Record or use an electronic bio-print pad to capture the print electronically.

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How would a Notary handle a signer of a Document of Conveyance who cannot provide a print of the right thumb for the Notarial Record? If the right thumbprint is unavailable, the Notary may obtain the print of any available finger and indicate such on the Notarial Record, or, if the signer or agent is unable to provide a print of any kind, the Notary may provide an explanation of the person's physical condition preventing a thumb- or fingerprint from being taken.

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May a Notarial Record be created using electronic means? Yes, as long as the electronic means reliably captures the image of the thumbprint.

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Must a Notarial Record be created for a notarization involving an attorney in fact signing a Document of Conveyance on behalf of a principal? Yes. An attorney in fact is a person who has been legally designated to transact business in the name of a principal. An attorney in fact is not necessarily an attorney at law, but an agent of the principal. A power of attorney document is created and executed conferring a named individual as attorney in fact. For example, in a transaction conveying real property, the attorney in fact would sign the Document of Conveyance for the principal, who may be unavailable to sign due to travel or medical reasons.

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What happens to a Notary if the Notary fails to complete a Notarial Record when required by law? The new law states that a Notary's failure to comply with the requirement to create a Notarial Record when required by law shall not affect the validity of the transaction involving the Document of Conveyance, in the absence of fraud. However, a failure to complete a Notarial Record could constitute "official misconduct" as defined in 5 ILCS 312/7-104 and be cause for the Secretary of State to revoke the Notary's commission under 5 ILCS 312/7-108.

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How much may a Notary charge for completing a Notarial Record? Until July 1, 2013, a Notary who completes a Notarial Record for a qualifying Document of Conveyance may charge up to a maximum fee of $25.

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What requirements does a Notary have in charging a fee for a Notarial Record? The Illinois Notary Public Act requires all Notaries to provide receipts and keep records for fees accepted for services provided.

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   Delivery Of Notarial Record

What must a Notary do with the Notarial Record after it is created? There are two options: (1) If the Notary is a principal, employee or agent of a title insurance company, title insurance agent, financial institution or attorney, the Notary must deliver the Notarial Record to the Notary's employer or principal; or (2) If the Notary is not a principal, employee or agent of a title insurance company, title insurance agent, financial institution or attorney, the Notary must deliver the Notarial Record to the Cook County Recorder of Deeds.

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How long does a Notary have to deliver the Notarial Record to the Notary's employer or the Cook County Recorder of Deeds? The Notary must deliver the Notarial Record within 14 days after performance of the notarial act on the qualifying Document of Conveyance.

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   Confidentiality Of Notarial Record

Can a Notary keep a copy of a Notarial Record? No, the Notary may not keep a copy of the Notarial Record.

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Can a Notary make a copy of a Notarial Record for the Notary's records or to give to any party? No, the Notary may not retain a copy for the Notary's records nor provide a copy to any person.

Who can obtain a copy of a Notarial Record? The law states that a court upon issuing a subpoena and a party in succession of interest to the party maintaining the Notarial Record can obtain the Notarial Record.

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Under what circumstances may a Notarial Record be disclosed? The Notarial Record is exempt from disclosure under the Freedom of Information Act and may not be disclosed to any other party, other than a party in succession of interest to the party maintaining the Notarial Record. In addition, a court of competent jurisdiction may issue a subpoena for the Notarial Record.

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Is a Notarial Record open to disclosure under the Freedom of Information Act? No, the Notarial Record is specifically exempt from disclosure under the Freedom of Information Act.

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   Submission Of Notarial Record To Cook County Recorder

Can more than one Notarial Record be submitted to the Cook County Recorder at a time? Yes, as long as each Notarial Record in the batch is filed within 14 days after the notarization on the corresponding Document of Conveyance is performed.

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Must the Document of Conveyance and Notarial Record created for the Document of Conveyance be submitted to the Cook County Recorder of Deeds at the same time? The Document of Conveyance may be submitted to the Cook County Recorder of Deeds with the Notarial Record, but it may also be submitted separately.

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May a Notarial Record be submitted to any Cook County Recorder's office location? Yes. A Notarial Record may be submitted to the downtown Chicago, Bridgeview, Markham, Maywood, Rolling Meadows or Skokie office locations.

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What method of delivery must a Notary use to submit a Notarial Record to the Cook County Recorder of Deeds? The Notarial Record may be delivered by any means or carrier requiring a signature and delivery confirmation. A Notarial Record may not be delivered in person by the Notary.

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Is there a fee for submitting a Notarial Record to the Cook County Recorder of Deeds? Yes, the fee is $5.

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What methods of payment does the Cook County Recorder of Deeds accept for the filing fee? The filing fees may be paid by cash or check only.

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Who pays the $5 fee to the Cook County Recorder of Deeds for the filing of a Notarial Record? The law is unclear on this point. The NNA recommends that the Notary obtain the $5 filing fee from the grantor or signer who executes the Document of Conveyance.

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   Considerations For Employers

How long must an employer of a Notary retain the Notarial Record as part of the employer's business records? The Notary's employer must retain the Notarial Record for a period of 7 years from the date of the notarial act on the qualifying Document of Conveyance.

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May an employer of a Notary who retains the Notarial Record make copies of the Notarial Record? The Notary's employer may retain copies of the Notarial Record as part of its business records, subject to applicable privacy and confidentiality standards.

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Is a Notary Signing Agent considered an employee or agent of a title insurance company, title insurance agent, financial institution or attorney? A Signing Agent who has executed an independent contractor agreement with a title insurance agency, financial institution or attorney to provide document signing services for real property transactions is considered an "agent" of the contracting title insurance agency, financial institution or attorney and must deliver a Notarial Record to the title insurance company title insurance agent, financial institution or attorney contracting with the Signing Agent.

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