An affidavit of title is created by a seller and designed to protect the buyer of some property. It is a commonly used legal document in real estate purchase transactions and other property transactions where ownership is transferred.

Table of Contents

• What is an Affidavit of Title?
• When to Use an Affidavit of Title
• How to Write an Affidavit of Title
• Additional points to include in the Affidavit of Title
• FAQs on Affidavit of Title
• Affidavit of Title Sample

What is an Affidavit of Title?

An Affidavit of Title is a legal document used in real estate transactions to confirm the seller's legal ownership of a property and to declare that there are no undisclosed claims or liens on the property. This affidavit provides assurance to the buyer that the seller has the legal right to sell the property and that the property's title is clear of any encumbrances or disputes.

Key points about an Affidavit of Title:

1. Ownership Confirmation: The affidavit typically begins by stating the seller's name and address and affirming that they are the rightful owner of the property.

2. No Liens or Encumbrances: The seller declares that there are no outstanding mortgages, liens, easements, or other claims against the property, except for those explicitly mentioned in the sales contract.

3. Legal Capacity: The seller affirms that they have the legal capacity to sell the property, and there are no legal impediments to the sale.

4. Title Examination: The seller may state that they have examined the property's title and that it is free and clear of any defects.

5. Indemnification: The seller may agree to indemnify the buyer against any future claims or disputes related to the property's title that may arise after the sale.

6. Notarization: Affidavits of Title are typically signed in the presence of a notary public, who acknowledges the seller's signature.

The purpose of this document is to protect the buyer's interests by providing a written statement from the seller regarding the property's title. It is often required as part of the closing process in real estate transactions to ensure that the buyer receives a clear and marketable title to the property.

Keep in mind that the specific requirements and content of an Affidavit of Title may vary by state or jurisdiction, and it is usually prepared by a real estate attorney or a title company to comply with local laws and regulations.

When to Use an Affidavit of Title

You should use an Affidavit of Title in real estate transactions when selling or transferring ownership of a property. It is a critical document that helps establish the seller's legal right to transfer the property's title to the buyer. Here are common scenarios when you would use an Affidavit of Title:

1. Home Sales: When selling a residential property, such as a house or condominium, you typically use an Affidavit of Title as part of the closing process.

2. Commercial Real Estate Sales: The document is also essential in commercial real estate transactions, including the sale of office buildings, retail spaces, warehouses, and industrial properties.

3. Transfers of Real Property: If you're transferring ownership of real property, even without a sale involved, such as gifting a property to a family member or adding a spouse's name to the title, an Affidavit of Title can be used.

4. Refinancing: In some mortgage refinancing situations, lenders may require an updated Affidavit of Title to confirm that there are no new title issues.

5. Title Insurance: When obtaining title insurance, title companies may request an Affidavit of Title to assess the property's title status and any potential risks.

6. Estate Settlement: During the distribution of an estate, an Affidavit of Title might be necessary if real estate assets are being transferred to beneficiaries or sold.

7. Loan Collateral: If real property is offered as collateral for a loan, the lender may require an Affidavit of Title to ensure their lien is properly recorded.

In all these cases, the Affidavit of Title helps verify that the seller or transferor has clear and marketable title to the property, meaning there are no undisclosed liens, encumbrances, or disputes that could affect the buyer or recipient's legal ownership. It provides a level of assurance and protection to both parties in the real estate transaction and is typically notarized for added legal validity. It's important to consult with legal professionals or title companies to ensure compliance with local laws and regulations when preparing and using this document.

How to Write an Affidavit of Title

Writing an Affidavit of Title is a crucial step in real estate transactions to affirm the seller's ownership of a property. Here are the steps to create an Affidavit of Title:

Step 1: Title and Heading

• Begin with a clear and concise title, such as "Affidavit of Title" or "Sworn Statement of Title."

Step 2: Introduction

• Start with an introductory statement. Example: "I, [Your Name], hereby make this Affidavit to confirm my ownership of the property located at [Property Address]."

Step 3: Legal Description

• Include the legal description of the property. This should match the description in the property deed. You can obtain this information from the property deed or your local property records office.

Step 4: Ownership Statement

• State that you are the legal owner of the property and have the authority to sell or transfer it. Example: "I am the legal owner of the property and have full authority to transfer the title to the buyer."

Step 5: Liens and Encumbrances

• Declare that there are no outstanding liens, mortgages, encumbrances, or claims against the property that could affect the buyer's ownership rights. If there are any, they should be disclosed.

Step 6: Legal Representation

• If you have legal representation, mention their name, firm, and contact information.

Step 7: Signature and Notarization

• Sign the document in the presence of a notary public. The notary will confirm your identity and acknowledge your signature.

Step 8: Notary Acknowledgment

• The notary will complete the acknowledgment section, including their seal and signature, confirming the authenticity of the document.

Step 9: Witness (Optional)

• Some jurisdictions may require witnesses in addition to notarization. Check local regulations to determine if witnesses are necessary.

Step 10: Copies

• Make copies of the completed and notarized Affidavit of Title. Keep one copy for your records and provide the original to the buyer or recipient.

Remember that an Affidavit of Title is a legally binding document, and any false statements or misrepresentations can have serious legal consequences. Consult with a legal professional or title company to ensure compliance with local laws and to address any specific requirements or concerns related to your real estate transaction.

Additional points to include in the Affidavit of Title

In addition to the essential elements mentioned in the previous response, you may consider including the following points in an Affidavit of Title to make it more comprehensive and informative:

1. Tax Status: Confirm that property taxes are up-to-date and specify the tax parcel number or identification.

2. Encroachments and Boundary Disputes: Address any known issues related to encroachments or boundary disputes, and provide details on how these have been or will be resolved.

3. Easements and Rights of Way: Disclose any existing easements, rights of way, or shared access agreements affecting the property.

4. Pending Legal Actions: If there are any pending lawsuits or legal actions that may impact the property's title or use, disclose them.

5. HOA or Condo Association: State if the property is subject to a homeowner's association (HOA) or condominium association and provide contact information for the association.

6. Environmental Hazards: Mention any environmental concerns or hazards associated with the property, such as lead-based paint, asbestos, or underground storage tanks, if applicable.

7. Access and Utilities: Describe the property's access to public roads and utilities like water, sewage, electricity, and gas.

8. Outstanding Debts: Confirm that there are no outstanding debts related to the property, such as unpaid utility bills or outstanding assessments.

9. Changes to Property: Notify the buyer of any changes made to the property since the date of the last title search, such as improvements, alterations, or additions.

10. Warranty of Title: Include a warranty clause affirming that you have good and marketable title to the property and that it is free from undisclosed encumbrances.

Remember, the specific content and details to include may vary based on your jurisdiction's laws and the unique circumstances of the property transaction. Consult with a real estate attorney or title company to ensure your Affidavit of Title is comprehensive and complies with local regulations.

FAQs on Affidavit of Title

What Is an Affidavit of Title?

An Affidavit of Title is a legal document that a seller of real property provides to a buyer to confirm that they have the legal right to sell the property. It typically includes information about the property's title history, liens, and other relevant details.

When Is an Affidavit of Title Used?

An Affidavit of Title is commonly used in real estate transactions when a seller wants to assure the buyer that the property's title is clear of any undisclosed claims or issues. It's often required by title insurance companies and lenders.

What Information Is Included in an Affidavit of Title?

An Affidavit of Title typically includes details about the property, such as its legal description, the seller's ownership history, any outstanding liens or encumbrances, and a statement affirming the seller's ownership rights.

Is an Affidavit of Title the Same as a Title Search?

No, they are not the same. An Affidavit of Title is a sworn statement by the seller, while a title search is conducted by a title company or attorney to verify the property's ownership history, liens, and encumbrances. The affidavit is based on the results of the title search.

Is an Affidavit of Title Legally Binding?

Yes, an Affidavit of Title is a legally binding document. When the seller signs it, they are making a sworn statement about the property's title, and providing false information can have legal consequences.

Who Prepares an Affidavit of Title?

An attorney or title company typically prepares the Affidavit of Title. However, it may also be drafted by the seller's real estate agent or broker, depending on local practices.

Do Both Parties Sign the Affidavit of Title?

Typically, only the seller signs the Affidavit of Title, as it is a statement made by them regarding the property's title. However, it's advisable for both parties to review and acknowledge its contents as part of the due diligence process in a real estate transaction.

Affidavit of Title Sample