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Notary Powers and Duties

As of July 1, 1993, all notaries public may exercise the powers of the office in all counties in Tennessee. T.C.A. 8-16-208

Notaries public have the power to administer oaths, take depositions, qualify parties to bills in chancery, and take affidavits. T.C.A. 8-16-302

Notaries public can take an acknowledgement or affidavit of a nonresident of the State of Tennessee if that person is physically present within this state.

A notary should not acknowledge his or her own signature nor notarize any signature if he or she is a party to the transaction or agent of a party taking an acknowledgement.

A notary should under no circumstances take the acknowledgement of a person who does not appear before the notary since the statue by express language, “personally appeared before me”, demands actual appearance. The notary should see one of the following forms of identification before notarizing any document:

• Valid State Driver’s License

• Valid State Identification Card

• Valid Military Identification Card

A notary must sign documents in ink by his or her own hand. T.C.A. 8-16-302.

A notary should affix his or her official seal in all cases. T.C.A. 8-16-206, 8-16-301.

The true date of expiration of the notary’s commission must be written, stamped, or printed on every certificate of acknowledgement. While a violation of this requirement will not generally invalidate the certificate of acknowledgement, it is a Class C misdemeanor. T.C.A. 8-16-303. However, where the true date of expiration shows the commission has expired, the certificate of acknowledgement is invalid. T.C.A. 8-16-308; Haynes v. State, 374 W.W. 2d 394 (Tenn. 1964).

Fees and Records

The statutory fees allowed a notary are as follows:

• For the recording in a well-bound book kept by the notary, each of the notary’s attestations, protestations and other instruments of publication (8-16-306, 8-21-1201) - $1.00

• For every acknowledgement of probate of deed, or other instrument of writing, same as county clerks with seal attached (8-21-701(1) and 8-21-1201) - $0.25

• For each deposition taken (8-21-1201) - $1.00

• For the protestation of negotiable instruments, for each instrument protested, without regard to the number of parties on each instrument (8-16-307, 8-21-1201) - $1.50

• For any service legally performed by notary, the same fees allowed other officers for like service (8-21-1201) - usually $0.50

• The Attorney General has opined that the maximum fee that can be charged by a notary public for taking an acknowledgement is $2.25. T.C.A. 8-21-1201(3) states that the fee shall be the same allowed for county clerks.

• T.C.A. 8-21-401 (3)(B) authorizes a $2.00 fee for affixing the seal on any notary instrument, while T.C.A. 8-21-701 authorizes an additional $.25 fee for taking and certifying the probate or acknowledgement of a deed or other instrument. Attorney General Opinion U89-75 (6/1/89).

The notary should understand that the notary’s duty is merely to take the acknowledgement to the instrument, after receiving proper identification of the affiant, or to take the oath of the affiant or other notarization. If it is necessary for the notary to prepare the affidavit for the affiant’s signature and oath, an additional fee for that service is allowable, depending on the nature of the service. If additional services are stenographic in nature, a stenographer’s fee, or if said additional services are performed by an attorney and are legal in nature, an attorney’s fee, may be appropriate.

In order to charge the statutory fee, a notary must keep a record in a well-bound book of each of his or her attestations, protestations, and other instruments of publication. A record of fees received should also be kept for income tax records. It is recommended that every notary keep a record of his or her acts in a well-bound book, which should include:

• The date of the acknowledgement, affidavit or other transaction;

• The name of the person whose signature is being notarized;

• To whom the instrument is being executed;

• A description, including the date, of the instrument;

• Whether the person whose signature was notarized was a personal acquaintance or what proof was shown prior to notarizing the signature

• What fee, if any, was received.

Liability

Tennessee statutes provide that if a notary who takes acknowledgement of a deed or other instrument fails or refuses to comply with and discharge the duties required of a notary, he or she shall forfeit and pay the sum of $100.00 for the use of the county of the notary's residence and shall, moreover, be liable to the party injured for all damages, including costs, the party may sustain by the notary's failure or refusal to discharge the statutory duties. T.C.A. 66-22-113. Such action can be based on the negligence or misconduct of the notary. Other penalties for misconduct are discussed earlier in this publication. Liability is not limited to the amount of the statutorily mandated bond. Professional liability insurance may be available for a notary public.

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