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Senate Bill 265
By: Senators Tillery of the 19th, Dugan of the 30th, Hufstetler of the 52nd, Gooch of the
51st, Summers of the 13th and others
A BILL TO BE ENTITLED
AN ACT
To amend Article 1 of Chapter 17 of Title 45 of the Official Code of Georgia Annotated,
1
relating to general provisions regarding notaries public, so as to provide for electronic2
notarization of certain notarial acts using real time audio-video communication technology3
when certain requirements are satisfied; to provide for and revise definitions; to provide for4
an electronic seal of office; to provide for requirements and exemptions; to provide for5
criminal penalties and civil liability, including compensatory and punitive damages; to6
provide for class action lawsuits; to provide for related matters; to provide for conforming7
changes; to provide an effective date; to repeal conflicting laws; and for other purposes.8
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9
SECTION 1.10
Article 1 of Chapter 17 of Title 45 of the Official Code of Georgia Annotated, relating to11
general provisions regarding notaries public, is amended by revising Code Section 45-17-1,12
relating to definitions, as follows:13
"45-17-1.14
As used in this article, the term:15
(1) 'Appear,' 'personally appear,' or 'in the presence of' means:
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(A) Being in the same physical location as another individual at the same time and17
close enough to see, hear, communicate with, and exchange tangible identification18
credentials with such individual; or19
(B) Interacting with another individual by means of real-time two-way audio-video20
communication technology that complies with the provisions of this article.21
(1)(2) 'Attesting,' 'attestation,' or 'attested' means 'Attesting' and 'attestation' are22
synonymous and mean the notarial act of witnessing or attesting a signature or execution23
of a deed or other written instrument, where such notarial act does not involve the taking24
of an acknowledgment, the administering of an oath or affirmation, the taking of a25
verification, or the certification of a copy.26
(2)(3) 'Notarial act' means any act that a notary public is authorized by law to perform27
and includes, without limitation, attestation, the taking of an acknowledgment, the28
administration of an oath or affirmation, the taking of a verification upon an oath or29
affirmation, and the certification of a copy, as provided for in Code Section 45-17-8.30
(3)(4) 'Notarial certificate' means the notary's documentation of a notarial act.31
(5) 'Notary public' means an official of integrity who performs notarial acts and whose32
commission is granted or denied by a clerk of superior court in a county in this state as33
provided for in Code Section 45-17-2.3."34
SECTION 2.35
Said article is further amended by revising Code Section 45-17-6, relating to seal of office,36
as follows:37
"45-17-6.38
(a)(1) For the authentication of his any notarial acts, each notary public must provide a39
seal of office, which seal shall have for its impression his the notary's name, the words40
'Notary Public,' the name of the state, and the county of his residence; or it shall have for41
its impression his the notary's name and the words 'Notary Public, Georgia, State at42 23 LC 52 0201
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Large.' Notaries commissioned or renewing their commission after July 1, 1985, shall
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provide a seal of office which shall have for its impression the notary's name, the words44
'Notary Public,' the name of the state, and the county of his
appointment. The45
embossment of notarial certificates by the notary's seal shall be authorized but not46
necessary, and the use of a rubber or other type stamp, including an electronic seal of47
office, shall be sufficient for imprinting the notary's seal. An electronic seal of office in48
an appropriate file format shall include the notary's name, commission number,49
commission expiration date, and the words 'Notary Public, Georgia, Electronic Seal.' A50
scrawl or initials shall not be a sufficient notary seal. An official notarial act must be51
documented by the notary's seal.52
(2) No document executed prior to July 1, 1986, which would otherwise be eligible for53
recording in the real property records maintained by any clerk of superior court or54
constitute record notice or actual notice of any matter to any person shall be ineligible for55
recording or fail to constitute such notice because of noncompliance with the requirement56
that the document contain a notary seal.57
(b) It shall be unlawful for any person, firm, or corporation to supply a notary public seal58
to any person unless the person has presented the duplicate original of the certificate59
commissioning the person as a notary public. It shall be unlawful for any person to order60
or obtain a notary public seal unless such person is commissioned as a notary public."61
SECTION 3.62
Said article is further amended by revising subsection (a) of Code Section 45-17-8, relating63
to powers and duties generally, as follows: 64
"(a) Notaries public, excepted as prohibited in subsection (c) of Code Section 45-17-9,65
shall have authority to:66
(1) Witness or attest signature or execution of deeds and other written instruments;67
(2) Take acknowledgments;68 23 LC 52 0201
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(3) Administer oaths and affirmations in all matters incidental to their duties as
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commercial officers and all other oaths and affirmations which are not by law required70
to be administered by a particular officer;71
(4) Witness affidavits upon oath or affirmation;72
(5) Take verifications upon oath or affirmation;73
(6) Make certified copies, provided that the document presented for copying is an74
original document and is neither a public record nor a publicly recorded document75
certified copies of which are available from an official source other than a notary and76
provided that the document was photocopied under supervision of the notary; and77
(7) Perform such other acts as they are authorized to perform by other laws of this state."78
SECTION 4.79
Said article is further amended by revising Code Section 45-17-8.1, relating to the signature80
and date of notarial act, as follows:81
"45-17-8.1.82
(a) Except as otherwise provided in this Code section, in documenting a notarial act, a83
notary public shall sign on the notarial certification, by hand in ink or electronically as
84
provided in Code Section 45-17-9, only and exactly the name indicated on the notary's85
commission and shall record on the notarial certification the exact date of the notarial act.86
(b) The requirement of subsection (a) of this Code section for recording of the date of the87
notarial act shall not apply to an attestation of deeds or any other instruments pertaining to88
real property.89
(c) No document executed prior to July 1, 1986, which would otherwise be eligible for90
recording in the real property records maintained by any clerk of superior court or91
constitute record notice or actual notice of any matter to any person shall be ineligible for92
recording or fail to constitute such notice because of noncompliance with the present or any93
prior requirements of this Code section."94 23 LC 52 0201
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SECTION 5.
95
Said article is further amended by revising Code Section 45-17-9, relating to where notarial96
acts may be exercised, as follows:97
"45-17-9.98
(a)
Notarial acts may be exercised in any county in the state.99
(b) Except as provided in subsection (c) of this Code section, the requirement that a100
notarial act occur in the presence of the notary public shall be satisfied when such act is101
performed remotely if:102
(1) The notary public is physically located in this state;103
(2) The notary public uses real-time two-way audio-video communication technology104
that meets the following requirements:105
(A) Allows the parties to see, hear, and communicate with each other; and106
(B) Is sufficiently secure to prevent interference with the authenticity, integrity, and107
security of the transaction, to prevent corruption or loss of the recording of the108
transaction, and to prevent unauthorized use of or tampering with the recording, record,109
and backup record;110
(3) The signatory is physically located in the United States, or one of its territories or111
military bases, or at a United States embassy, consulate, or diplomatic mission location;112
(4) The signatory presents evidence of his or her identity and location;113
(5) The notary public witnesses the signature; and114
(6) The notary public documents evidence of the acts provided for in paragraphs (1)115
through (5) of this subsection.116
(c) An electronic notarial act shall not be performed to:117
(1) Create or execute a will, codicil, or testamentary trust; or118
(2) Notarize the signature on any instrument or document executed for the conveyance119
of real property located in this state, whether or not such document is recorded.120 23 LC 52 0201
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(d) A document electronically notarized as provided in subsection (b) of this Code section121
shall be deemed to have been executed in this state at the time of signature."122
SECTION 6.123
Said article is further amended by revising Code Section 45-17-20, relating to penalty and124
prosecution of violations of article, as follows:125
"45-17-20.126
(a) Any person who violates subsection (d) of Code Section 45-17-8 or performs any127
notarial act without complying with the provisions of this article shall, upon a first or128
second conviction, be guilty of a misdemeanor; provided, however, that, upon a third or129
subsequent conviction, such person shall be guilty of a felony, punishable by imprisonment130
of not less than one year nor more than five years, a fine of up to $5,000.00, or both.131
(b) Any person who performs any notarial service without complying with the provisions132
of this article shall, upon the first or second conviction, be guilty of a misdemeanor and133
upon a third or subsequent conviction be guilty of a felony, punishable by imprisonment134
of not less than one year nor more than five years, a fine of up to $5,000.00, or both. Any135
person, including, but not limited to, a notary public, a mortgage lender or its affiliates,136
employees, agents, and attorneys, or an attorney or the attorney's employee or agent, that137
aids or abets another person in violating this article, including, but not limited to, directing138
the performance of an unauthorized notarial act, shall, upon a first or second conviction,139
be guilty of a misdemeanor; provided, however, that, upon a third or subsequent140
conviction, such person shall be guilty of a felony, punishable by imprisonment of not less141
than one year nor more than five years, a fine of up to $5,000.00, or both."142
SECTION 7.143
Said article is further amended by adding a new Code section to read as follows:144 23 LC 52 0201
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"45-17-21.145
(a) While participating in a residential or commercial real estate closing involving property146
located in this state, any person, including, but not limited to, a notary public, a mortgage147
lender or its affiliates, employees, agents and attorneys, or an attorney or the attorney's148
employee or agent, that engages in conduct that constitutes an unlawful notarial act,149
knowingly aids and abets another person in committing an unlawful notarial act, or150
otherwise violates the provisions of this article regulating real estate transactions, shall be151
liable for damages resulting from such illegal conduct. Such damages shall include, but152
not be limited to:153
(1) Actual monetary losses incurred by the plaintiff as a result of a violation of this154
article;155
(2) Any expenses paid by the plaintiff for the services of the notary public, mortgage156
lender or its affiliates, employees, agents, and attorneys, or attorney or attorney's157
employee or agent that violated this article;158
(3) De minimis or nominal damages incurred by the plaintiff as a result of a violation of159
this article; and160
(4) Any monetary losses incurred by a business competitor as a result of a violation of161
this article.162
(b) In addition to the penalties provided for in Code Section 45-17-20 and in subsection (a)163
of this Code section, in an individual cause of action, a court may award punitive damages164
of $1,000.00 per buyer and $1,000.00 per seller. The court shall consider the frequency165
and persistence of noncompliance by the defendant, the nature of such noncompliance, and166
the extent to which such noncompliance was intentional.167
(c) In addition to the penalties provided for in Code Section 45-17-20 and in subsection (a)168
of this Code section, in a class action lawsuit, a court may award punitive damages not169
exceeding $1,000.00 per class member, provided that the aggregate of such punitive170
damages not exceed the lesser of $500,000.00 or 1 percent of the collective net worth of171 23 LC 52 0201
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the defendant. The court shall consider the frequency and persistence of noncompliance172
by the defendant, the nature of such noncompliance, the extent to which such173
noncompliance was intentional, the number of persons or sales impacted by the violation,174
the impact of the judgment, and the resources of the defendant.175
(d) The court may provide such equitable relief it deems necessary or proper, including176
invalidating the sale of the real estate property at issue and enjoining the defendants from177
further violations of this article.178
(e) A person shall not be held liable for punitive damages in any action brought under this179
article if the person shows by a preponderance of the evidence that the violation was not180
intentional and resulted from a bona fide error notwithstanding the maintenance of181
procedures implemented to avoid such error.182
(f) A cause of action brought under this Code section may be filed in any court of183
competent jurisdiction within this state without regard to the amount in controversy. Such184
cause of action shall be filed within one year from the date on which the violation occurred.185
(g) Upon a finding by the court that an action under this Code section was brought in bad186
faith and for the sole purpose of harassment, the court may award the defendant court costs187
and reasonable attorney fees."188
SECTION 8.189
This Act shall become effective upon its approval by the Governor or upon its becoming law190
without such approval.191
SECTION 9.192
All laws and parts of laws in conflict with this Act are repealed.193