What is an Affidavit of Title?
An Affidavit of Title is a legal document provided by the seller of real estate that explicitly states the status of potential legal issues involving the property or the seller. An affidavit is a sworn statement of fact that states that the seller of a property has title to it. In other words, it is proof that the seller owns the property. It also certifies that certain other facts regarding the property are correct – as sworn by the seller and duly notarized.
For example, a person seeking to sell real estate will need to provide an affidavit of title stating that the property is theirs for sale, that the property is not sold to another party, that there is no privileges or unpaid bills on the property, and the seller is not in bankruptcy proceedings.
Key points to remember
- An Affidavit of Title is a notarized legal document provided by the seller of real estate attesting to the condition and certain facts about the property, including ownership and the presence of legal issues.
- An Affidavit of Title is designed to protect the buyer of the property.
- Most states and title companies require affidavits of title in real estate transactions.
Understanding the Affidavit of Title
An Affidavit of Title is designed to protect the buyer from outstanding legal issues the seller may be facing. If a problem arises at a later date, after the transaction, the buyer is in possession of a physical document – a document containing affidavits from the seller – which can be used in court if legal action needs to be taken. .
Most states require an Affidavit of Title as part of the legal documents required for the transfer of property from one party to another. An affidavit of title is also usually required by the title company before issuing title insurance.
Contents of an affidavit of title
The guidelines for an Affidavit of Title may vary from state to state. Typically, however, the core content includes personal information about the seller, including a name and address. In addition, there are statements to the effect that:
- The seller is the true and exclusive official owner of the property sold.
- The seller is not simultaneously selling the property to someone else.
- There are no liens or current appraisals on the property.
- The seller has not declared bankruptcy or is not currently in bankruptcy proceedings.
Beyond that, there may be specific exclusions given in an Affidavit of Title. For example, the Affidavit of Title may state that there is a mortgage left on the property that will not be paid off until after closing or that a specific privilege or matter exists, but is being settled or dealt with. The broader exclusions include things like easements, encroachments and other issues that may not appear in public records.
If an exception in the Affidavit of Title is of concern to the buyer, the buyer can advise the seller that the item needs to be corrected prior to closing. It could be as simple as asking the seller to clear a lien, or something more complex, like paying for an update to the land award survey and any related easements.
Real example of an affidavit of title
Affidavits of Title can be used for real estate transactions other than purchases. The New York State Department of Parks and Recreation has an Affidavit of Title form that it uses for nonprofits seeking grants for construction projects. The form first asks the seller, “the fee simple owner of the property”, to indicate when he acquired the property, along with the date and registration number of the deed.
Second, there is a clause which states: “During the entire period of this property, said property was in the possession of said owner (s); this possession was peaceful and undisturbed, and its title has never been contested, questioned or dismissed. We are not aware of any fact by which such possession or title could have been called into question or whereby any claim on any part of said property or interest therein contrary to said property could have been brought into question. be incorporated. such unpaid or dissatisfied owner (s) with the record in a court in that state or the United States. Said property is free and clear of all mortgages, foreclosures, judgments, leases, leases, easements, licenses, charges, estates, unpaid taxes and appraisals, unredeemed or uncancelled tax sales, sales contracts, shares or procedures which may affect them, or any other rights, privileges and charges whatsoever… ”
Four more clauses follow, including the possibility to indicate exceptions, if necessary.