from Local Attorney, Michael H. Wasserman

Friday, May 15, 2009


Things get a bit more complicated next month for Sellers who want to Close on Real Estate Transactions in Chicago, and the Lawyers who represent them.

We've watched the progress of Public Act 95-988 for some time as it winded its way through the legislative process last year. The new law takes effect in just two weeks. Based on my conversations with several other local practitioners and title company representatives, I think that sellers can certainly expect three significant changes with regard to their intended real estate closings.

First, a quick recap.
  1. Public Act 95-988 creates a pilot project that is effective June 1, 2009 and terminates June 30, 2013.
  2. The new law affects the notarization of transfers of residential real estate in Cook County.
  3. Illinois notaries public who notarize documents of conveyance of qualifying residential real estate in Cook County will be required to create a Notarial Record,
  4. Take a thumbprint of the seller(s), and providing for record keeping of the Notarial Record to the responsible parties.
  5. The new law requires all Illinois notaries public to verify a person’s identity with a currently valid state or federal photo identification document that bears a photographic image of the individual’s face and his or her signature
  6. Depending on whether the notary is an agent/employee of the title company or not, the Notarial Record must be retained delivered to the title company or County Recorder, and stored for 7 years.
The Three Things Sellers Should Expect:

First, Sellers are (what else?) going to pay more. Notaries are allowed to charge $25 for each notarial act that requires the thumbprint notarial record. At least two of the major title companies intend to impose the maximum fee.

Second, it is going to get harder (and this summer for sure, a whole lot harder) to find a notary public willing to perform notarization of deeds. Its going to be bad enough for notaries having to buy the equipment and notarial record forms, and learn how to use them. It is going to be a pain for many of them to establish appropriate record retention and preparation policies. Worse still, they will also have to comply with the Illinois Biometric Information Privacy Act. Which requires establishing additional written policies, disclosure protocols, and storage/confidentiality considerations. For many, I fear, it just won't be worth the bother.

As a result, I expect a lot of sellers who would otherwise pre-sign documents let their lawyers handle closings will be attending themselves, watching buyers sign loan documents and waiting for funding approvals.

Third, they will be participating in an endeavor that requires the thumbprint custodian to retain records to comply with one law that will conflict with the obligations to destroy records to abide by another. That's right folks. The good legislators in Springfield have mandated a seven year retention policy for notarial records, but that Biometric Records act? It directs that all such records be destroyed within three years (if not sooner).

So what happens to a record custodian who violates the records act to comply with the notary act? Well the penalty for an intentional violation is $5,000 per occurrence.

I say Yikes.

Then again, as one title rep assured me, this will be fixed down state, eventually. "Don't worry Mike, Springfield has three years to fix this "oversight."