TN Senate Bill 888

Legislation

State: Tennessee
Signed: April 06, 2015

Effective: April 06, 2015
Chapter: 76

Summary

Senate Bill 888 repeals last year's journal and fee law and provides that a Notary or Notary's employer may charge a reasonable fee for notarial services, that a Notary must record notarial acts in a journal if the Notary or Notary's employer charges a fee, and further clarifies matters related to the access to and ownership of these records.

Affects

Amends Section 8-21-1201 of the Tennessee Code Annotated.

Changes

Allows a Notary or a Notary's employer to demand and receive a reasonable fee for Notary services.
Requires a Notary to record the notarial acts for which the Notary or Notary's employer demands and receives a fee in a well-bound paper or an electronic journal.
Clarifies that if the Notary or the Notary’s employer does not demand and receive a fee for notarial services, the Notary is not required to record the notarial act in a well-bound paper or electronic journal.
Clarifies that if a Notary or Notary's employer demands and receives a fee for 1 or more services but does not separately charge a fee for the Notary's services, then the Notary is not required to record notarial acts in a journal.
Provides that if a Notary is employed by a financial institution subject to the Financial Records Privacy Act, the Notary or Notary's employer charges a fee, and the services performed by the Notary are part of the Notary's duties within the scope of employment, then access to the Notary's journal records are subject to the Financial Records Privacy Act or the federal Right to Financial Privacy Act.
Provides that if the Notary is an employee of a financial institution and the Notary does not charge a fee for notarial services, the records kept by the Notary, if any, are considered the Notary's records unless the financial institution adopts a written policy stating that such records are a record of the financial institution. In such case, access to the records shall be governed by the Financial Records Privacy Act or the federal Right to Financial Privacy Act.

Analysis

Last year Chapter 805 (HB 2387) repealed the statutory maximum fees a Notary may charge and enacted a provision stating that a Notary could charge a "reasonable fee" for notarial services. An additional provision was enacted requiring Notaries to keep a journal of all of the Notary's acts, attestations, protestations and other instruments of publication. After the bill was enacted, the Tennessee Secretary of State requested the Attorney General to issue an opinion on whether the new law required a Notary to keep a journal under all circumstances or only if the Notary charged a fee. Prior to the enactment of HB 2387, the policy in Tennessee was that a Notary had to keep records only if the Notary charged a fee. In Attorney General Opinion No. 14-89, the Attorney General clarified that Notaries must keep records of notarial acts for all notarizations, and not just those for which the Notary charged a fee. In addition, at the Secretary's request, the Attorney General clarified that it believed Notaries could keep an electronic journal, even though the new law clearly stated that Notaries must keep records in a "well-bound book."

This year, Senate Bill 888 repeals last year's new law in its entirety and replaces it with a provision stating that a Notary or a Notary's employer may charge a "reasonable fee." Tennessee becomes the first state to allow a Notary's employer to charge a fee for notarial acts its Notary-employee performs. SB 888 also rolls back the clock by clarifying that a Notary must only keep records in a journal if the Notary or Notary's employer charges a fee. The new law states that a Notary may keep records in a "well-bound book" or in an appropriate electronic form. Along with these provisions, the new law also clarifies matters related to the access to journal records. If the Notary's employer is a financial institution governed by the Tennessee Financial Records Privacy Act, the Notary or Notary's employer charges a fee for notarial services, and the notarial services are part of the Notary's duties within the scope of employment, then access to the notarial records are governed by the Financial Records Privacy Act or federal Right to Privacy Act. Finally, the bill also clarifies the circumstances under which the Notary's records belong to the Notary or the Notary's employer.

Read Senate Bill 888.