March 28, 2009
Thumbs down on offensive Illinois law
A new American law set to take effect June 1, 2009 will require anyone
selling a residential property in Cook County, Ill. – which includes Chicago –
to provide a thumbprint or fingerprint.
Under the cumbersome moniker of the Cook County Residential Real Estate
Conveyance "Thumbprint Pilot Project" Public Act 95-988, the unstated purpose of
the law is to combat real estate and mortgage fraud.
The legislation was quietly passed last October while public attention was
distracted by the election campaign of Barack Obama and an ongoing corruption
investigation, which eventually led to the removal of governor Rod Blagojevich.
In Illinois, unlike Ontario, signatures on transfers of real property must be
witnessed by a notary public. Under the new law, notaries will be required to
create a record of the signatures, which includes the names, addresses and photo
ID of the parties to the document, and a thumbprint or fingerprint of the
property seller.
The form is stored for seven years by either the notary's employer, or by the
Cook County recorder of deeds. The law authorizes a filing fee of $5, and a
notary fee of up to $25.
When word of the new law hit the mainstream media earlier this month, the
blogosphere went into overdrive over the perceived civil rights
infringements.
Glenn Beck, host of an interview program on Fox News, blasted the fingerprint
law. "Let me see if I have this right," he said. "Welcome to America. We can't
fingerprint anybody who's coming into this country because that would be
offensive. But if you own property in Chicago and you want to sell it, guess who
is going to get fingerprinted? Who has to get fingerprinted? You do.
"We can't take DNA samples from killers or rapists, but you can have your
fingerprint taken if you want to sell your house. What is happening to this
country?"
I agree with Beck. My own take is that Illinois got it all wrong. By the time
a transaction is revealed as fraudulent, the fraud artist has had weeks or
months to disappear.
As well, my Internet research reveals that a computer and simple household
materials like Play-Doh or Super Glue can be used to create fake fingerprints.
The Illinois law does nothing to capture the scenario where the seller is
perfectly innocent, but the buyer is the crook. I much prefer the Canadian
approach.
At the instigation of the Canadian government, in an effort to combat money
laundering, law societies across Canada have introduced requirements for
obtaining client identification.
In Ontario, these rules came into effect at the end of last year and require
lawyers to maintain records of identity documents for all clients, not
just those in real estate transactions.
In addition, on March 31 last year, the Ontario government and the Law
Society of Upper Canada introduced rules that grant lawyers the exclusive right
to access the land registration system to transfer title to real estate. As
gatekeepers, we have a strict set of rules to follow in each land transfer.
Our rules are not nearly as intrusive as the Illinois requirement, which
treats law-abiding citizens like criminals.
Ontario's anti-fraud title registration procedures seem to be working well
without notarized signatures and thumbprints. The legislators in Illinois could
learn a great deal from us.
Bob Aaron is a Toronto real estate lawyer and a director of the Tarion
Warranty Corporation. He can be reached by email at
bob@aaron.ca, phone 416-364-9366 or fax
416-364-3818. Visit the column archives at
http://aaron.ca/columns/toronto-star-index.htm for articles on this and
other topics. |
