Notaries Public

New Testing Requirements

What is a Notary Public?

Qualifications

Term of Office

Application and Instructions

Name Change Application and Instructions

Official Seal

Powers and Duties

Fees and Records

Liability

Affidavits, Affidavits, Acknowledgements and Depositions

WHAT IS A NOTARY PUBLIC?

A notary public is a public official whose powers and duties are defined by statute. It is a relatively simple matter to become a notary but the office has important responsibilities, limitations and liability potential that should be fully realized. This website is intended as a general guide and is especially designed to assist non-attorney notaries with the general requirements, duties, powers, limitations, liabilities and legal significance of his or her actions as a notary public. Legal counsel should be consulted whenever specific problems or questions arise concerning any aspect of the Office of Notary Public. Tennessee Code Annotated is referred to herein as T.C.A

QUALIFICATIONS

A notary must be 18 years of age and be a resident of, or maintain a principal place of business in, the county from which he or she is elected. T.C.A. 8-16-101

A person with a principal place of business in a Tennessee County may be elected a notary even though that person’s residence is in another state. T.C.A. 8-16-101

United States citizenship is a requirement of the office. T.C.A. 8-16-101.

A county legislative body member is not prohibited from serving as a notary public. T.C.A. 8-16-101

Every notary must keep an office in the county in which the notary was appointed. T.C.A. 8-16-108.

T.C.A. 8-18-101 states that...a person is disqualified from holding the office of notary public if that person:

has been convicted of offering or giving a bribe, larceny or any other offense declared infamous by law (unless restored to citizenship);

is a person who is a defaulter to the treasury at the time of election;

is a soldier, seaman, marine, or airman in the regular army, navy, or air force of the United States; or

is a member of congress or a person holding any office of profit or trust under any foreign power, other state or the United States.

It is a Class C misdemeanor to take office as a notary public if a disqualification exists. T.C.A. 8-18-102

A notary public may be removed from office just as any other county official. T.C.A. 8-47-101

TERM OF OFFICE

	The notary’s term is four years, beginning on the date of issuance of the commission by the Governor. T.C.A. 8-16-103
	It is a Class C misdemeanor for any person who has been commissioned as a notary public to take an acknowledgement or otherwise to act in an official capacity after the expiration of the notary’s commission. T.C.A. 8-16-308

APPLICATION AND INSTRUCTIONS

If you meet all the qualifications, submit a completed Notary Public-at-Large Application along with a check of $14.00 made payable to the RUTHERFORD COUNTY CLERK by the end of the last business day of the month for consideration in the next month's County Commission meeting

Approximately two (2) weeks after approval of your application by the Rutherford County Board of Commissioners, the Office of the Rutherford County Clerk will notify you, by mail, to secure a ($10,000.00) Notary Public-at-Large Surety Bond. You may file one of the following types of bonds in the Office of the Rutherford County Clerk:

a surety bond from an insurance company authorized to do business in the State of Tennessee

a surety bond signed by two (2) people who own real property in the State of Tennessee. Please print names of personal sureties in bond section provided in Notary Application. When notified by mail that your Tennessee Notary Public-at-Large Commission has been received, both personal sureties will be required, to appear in person, to sign your bond in the Office of the Rutherford County Clerk.

T.C.A. 8-16-105 states that...upon filing a surety bond, you will be required to take the following Oath of Office in the Office of the Rutherford County Clerk:

I, ______________________ do solemnly swear or affirm that I will support the constitutions of the State of Tennessee and the United States, and that I will, without favor or partiality, honestly, faithfully and diligently discharge the duties of notary public.

	The Notary Public for the State of Tennessee Commission Certificate will be issued to you upon completion of the above stated requirements.
	Notary Public-at-Large Application (PDF format, click here for further instruction)

NAME CHANGE APPLICATION AND INSTRUCTIONS

To change the name on an existing Notary Public for the State of Tennessee, please complete the following:

File one of the following Rider Bonds showing the name change with the County Clerk:

a surety bond from an insurance company authorized to do business in the State of Tennessee

a surety bond signed by two (2) people who own real property in the State of Tennessee. When notified that your Notary Public for the State of Tennessee Commission has been received, both personal sureties will be required, to appear in person, to sign your bond in the Office of the Rutherford County Clerk.

File a certified copy of the document proving the change of name such as:

Marriage Certificate

Divorce Decree

Name Change Order from the Court

File the original Notary Public Commission issued by the Secretary of State.

Pay a recording fee of $14.00.

After the above mentioned steps have been filed in the Office of the Rutherford County Clerk, the County Clerk will then order your Notary Public for the State of Tennessee Commission from the Tennessee Secretary of State. Once the Notary Public Commission has been issued, you will be notified by the County Clerk to appear, in person, before the County Clerk to take your Oath of Office before obtaining the Commission.

Notary Public for the State of Tennessee Name Change Application (PDF format, click here for further instruction)

OFFICIAL SEAL

	A notary must purchase an official seal at his or her own expense. T.C.A. 8-16-301.
	The seal must be a rubber stamp in any color other than black or yellow. T.C.A. 8-16-206.
	The current design prescribed by the Secretary of State for all notaries is circular, and has the notary’s full name printed at the top, the county in which elected at the bottom, and State of Tennessee Notary Public at Large in the center.

The seal must be surrendered to the county legislative body upon expiration of the notary’s term of office or resignation, and the personal representative must surrender the seal in the event of the death of the notary. Failure to properly surrender the seal constitutes a Class C misdemeanor. T.C.A. 8-16-301

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

Military Identification Card

Valid

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.

AFFIDAVITS, ACKNOWLEDGEMENTS AND DEPOSITIONS

The most frequent official act as notary public is requested to perform is the taking of affidavits and acknowledgements. Therefore, these areas are specifically addressed below.

Affidavits. An affidavit is a sworn statement made by a person called an affiant. The affiant makes oath before a notary public that the facts contained in the affidavit are true. The affidavit consists of the venue, body, affiant's signature and jurat. Venue indicates the place where the affidavit is made or taken and must be a place where the notary is empowered to act. The body of the affidavit is preceded by an introductory sentence, contains a short description of the affiant and the capacity in which he or she is taking the oath, and then it contains the facts the affiant swears are true. The affiant's signature is subscribed at the end of the affidavit and should appear exactly as it appears in the introduction. The jurat, also known as the notary's certificate, is the concluding statement that the affidavit was sown to before the notary on a certain date. Immediately beneath the jurat appears the signature of the notary before whom the oath is taken, and the notary's commission. This is a suggested form of affidavit:

State of Tennessee

County of _____________

________________________, being duly sworn, make oath as follows:

(Recite facts to be sworn to by affiant)

_______________________________

(affiant's signature)

Sworn to and subscribed before me this ______ day of ________, _______.

_______________________________

(notary's signature and seal)

My commission expires: _______________________

If the affidavit is to be used in a legal proceeding, the caption of the proceeding should be set out at the top of the affidavit. The notary public need not be concerned with the truthfulness of the facts stated by the affiant (other than in regard to the identity of the affiant). If the facts are willfully misstated, the affiant is guilty of perjury. The notary, of course, cannot know the truth of the statements and is under no duty to investigate the facts. A notary may not take the affidavit of a person who does not appear before the notary.

Acknowledgements. An acknowledgement, as its name implies, is a declaration by a person who has executed such document. All acknowledgements must be taken under the seal of the officer taking the acknowledgement. T.C.A. 66-22-110. An acknowledgement is distinguishable from verification in that an acknowledgement establishes proper execution of a document while verification establishes the truth of a document's contents. Attorney General Opinion 91-92 (11/19/1991).

Definitions of some of the important terms used in the acknowledgement forms are found in T.C.A. 66-22-106. "Know" or "personally acquainted with" is defined as:

Having an acquaintance, derived from association with the individual in relation to other people and based upon a chain of circumstances surrounding the individual, which establishes the individual's identity with a least reasonable certainty.

"Satisfactory evidence" is defined as the absence of any information, evidence or other circumstances which would lead a reasonable person to believe that the person making the acknowledgement is not the individual he or she claims to be, together with any of the following:

The oath or affirmation of a credible witness personally known to the officer that the person making the acknowledgement is personally know to the witness. (This should be in the form of an affidavit discussed earlier).

Reasonable reliance on the presentation to the officer of any one of the following, if the document is current or has been issued within five years:

	An identification card or driver license issued by the Tennessee Department of Safety; or
	A passport issued by the Department of State of the United States.

Reasonable reliance on the presentation of any one of the following, if the document is current or has been issued within five years, contains a photograph and description of the person named on it, is signed by the person, bears a serial or other identifying number, and, in the event that the document is a passport, has been stamped by the United States Immigration and Naturalization Service:

	A passport issued by a foreign government;
	A driver license issued by a state other than Tennessee;
	An identification card issued by a state other than Tennessee; or
	An identification card issued by any branch of the armed forces of the United States

Any certificate clearly evidencing an intent to authenticate, acknowledge or verify a document will constitute a valid certificate of acknowledgement for the purposes for which the certificate may be used under the law. The statute states that it is the legislative intent that no specific form or wording be required in such certificate and that the ownership of property, or the determination of any other right or obligation, shall not be affected by the inclusion or omission of any specific words. T.C.A. 66-22-114(b). The old form of the certificate can be used (T.C.A. 66-22-107, 66-22-108), or the new form, or a different form might be drafted but it needs to cover all of the elements of the certificate of acknowledgement need not include the "magic words" contained in the statutory form, it must nevertheless contain language to satisfy the substance of the certificate of acknowledge. There has never been any intent to abrogate the requirement that the notary have personal knowledge or be personally acquainted with the person signing the document. Attorney General Opinion 91-92 (11/19/1991).

The form of acknowledgement which is set out in T.C.A. 66-22-114 is a follows:

State of Tennessee

County of Rutherford

Personally appeared before me, (name of officer), official capacity of officer), (name of the natural person executing the instrument), with whom I am personally acquainted, and who acknowledged that he or she executed the within instrument for the purposes therein contained (THE FOLLOWING TO BE INCLUDED ONLY WHERE A NATURAL PERSON IS EXECUTING AS AGENT) and who further acknowledged position of the natural person executing the instrument, such as "attorney-in-fact" or "president" or "general partner") of the maker or a constituent of the maker and is authorized by the maker or by its constituent, the constituent being authorized by the maker, to execute this instrument on behalf of the maker.

Witness my hand, at office, this _____ day of ____________, __________.

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. If identification as statutorily defined and stated above is not produced, the notary should refuse to take the acknowledgement. A notary should never disregard the responsibilities of the office.

Depositions. A deposition is the testimony of a witness taken by interrogatories, not in open court, but by a person commissioned to take the testimony issued by a court, or according to general law, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court or a written declaration under oath, made after notice to the adverse party to enable cross-examination or upon written interrogatories. The taking of depositions in this state is governed by Rules 27 through 32 of the Tennessee Rules of Civil Procedure (T.R.C.P.), which must be strictly followed. Any officer authorized to administer oaths by federal, state, or territorial law is authorized to take depositions. T.R.C.P. 28.01. No deposition shall be taken before a person who is a relative (within the sixth degree, computed by the civil law) or employee or attorney or counsel of any of the parties, or who is a relative (within the sixth degree, computed by the civil law) or employee of such attorney or counsel, or who is financially interested in the action. T.R.C.P. 28.03.