An Affidavit of Title is a legal document containing a sworn statement where the seller of a piece of real estate swears that they hold the property’s title.
In other words, an Affidavit of Title is legal proof that a seller owns a property and has the right to sell it to another person.
An affidavit of title form is a commonly used legal document in real estate purchase agreement transactions and other property transactions where there is a transfer of ownership.
What is an Affidavit of Title?
An affidavit of title is a legal document created by a seller and designed to protect the buyer of some type of property.
The transfer of ownership of property may be a home, including a townhome or condominium. It could be a cottage or vacation property.
It might be a piece of land with no buildings on it. An affidavit of title does not distinguish between these property types and is common in many real estate transactions.
In the affidavit, the seller makes several sworn statements.
These statements include:
- Confirmation the seller is, in fact, the owner of the property in question;
- Confirmation the seller is not currently in bankruptcy proceedings;
- The seller is not also selling the property to another buyer; and
- A detailed list of any liens on the property or a representation of no liens, encumbrances, lawsuits, or other legal issues against the property.
Why Are Affidavits of Title Confirmations and Details Important?
Confirmation of Ownership
With few exceptions, only the property owner can sell the real estate. Confirmation of ownership assures the purchaser that the seller is the valid owner and that they are the only property owner.
Confirmation the Seller is Not Currently in Bankruptcy Proceedings
When someone is in bankruptcy proceedings, many legal issues arise, like limits on what they can do with their possessions, including real estate.
During bankruptcy, another person, called a trustee, decides whether an owner can sell a property and under what conditions. The property owner must get permission from the trustee to sell the property.
Consequently, an Affidavit of Title assures the purchaser that the owner is in a position to make decisions, such as selling the property.
The Seller is Not Selling the Property to Another Buyer
It is illegal to sell the exact property to more than one buyer. Nonetheless, it often happens in real estate transactions, so assurances from an Affidavit of Title are standard.
This assures the buyer they are the only one giving money to the seller in exchange for title to the property.
Liens and Affidavit of Title
What do liens have to do with an affidavit of title?
The Presence of Property Liens
A “lien” is a claim a property owner either grants against real estate or involuntarily receives (per the law). A lien won’t prevent a sale of the real estate – it just dictates who gets the money from the sale and in what order.
A title company or attorney should ensure someone pays liens before property transfer and there is a clear title before passing the title to the buyer to minimize unexpected legal issues.
The Absence of Property Liens
If a property is free of liens, no one has a financial interest in the property other than the property holder. This assures the purchaser the property owner is free to sell the property to anyone they choose, without obligation to others.
Affidavit of Title PDF Example
This sample affidavit of title is a record of property ownership by a fictional “Seth Martin”.affidavit of title example
When Do I Need an Affidavit of Title?
If You Wish to Buy Real Estate
If you are planning to purchase property, an affidavit of title provides proof of several essential things and helps minimize unexpected legal issues.
The most common situation for using an affidavit of title is when someone is buying or selling property, such as:
- Land with outbuildings; or
A home, including:
- Houses; and
- Cabins or Cottages.
While an affidavit of title is a good idea for any property sale, title companies offering title insurance require them. Because title companies require them, most mortgage lenders will also require affidavits of title.
In summary, an affidavit of title provides security to a purchaser should a subsequent issue challenge the title.
Proof of Ownership
An affidavit of title offers evidence that the owner is, in fact, the owner. Selling property by a fraudulent non-owner is a common real estate scam, so make sure you use an affidavit of title in your real estate transactions to minimize risk.
Proof of Salability
An affidavit of title also provides information about whether or not an owner can sell the property.
For example, if the seller is currently in bankruptcy proceedings, they must get approval from a trustee before selling the home, which can take a significant amount of time. Additionally, the affidavit will confirm that the seller is not in the process of selling the property to someone else.
Affidavits of title can also include other information, such as:
- If there are any easements on the property; or
- If there are any boundary disputes.
If You Wish to Sell Real Estate
If you are the property owner, an affidavit of title can provide assurances to the purchaser as outlined above.
These assurances include that you are who you say you are and are free to sell the property at your discretion.
Whether you are buying or selling property, creating an affidavit of title takes little effort, so it is wise to use this legal document in all real estate transactions involving a sale.
It can protect buyers and sellers, so there is no reason not to execute one.
Title insurance is a low-cost way to protect yourself and your property from surprises.
What are the Consequences of Not Having an Affidavit of Title?
Without an affidavit of title, real estate purchasers cannot protect themselves from several unfortunate scenarios and potentially costly legal issues that could impact their legitimate claim to the property.
Some consequences of purchasing property without an affidavit include the following:
Contending with Unexpected Legal Issues
- Judgments against the property;
- Boundary line disputes; or
- Other legal issues that prevent clear titles.
Becoming Responsible for Liens
- Property subject to HOA liens;
- Property subject to mechanic’s liens; or
- Property subject to federal tax or other government liens.
Becoming a Victim of Fraud
- An undisclosed lease agreement of the property to another;·
- Undisclosed co-owners of the property;
- Forged deeds (warranty, quitclaim, or other deeds);
- Impersonation of the valid owner of the land; or
- Property subject to bankruptcy proceedings.
The consequences of not using an affidavit of title in your real estate transactions, and none are favorable to the purchaser.
If the purchaser buys the property without knowing, for example, there is an assessment on the property for new sidewalks and curbs, this does not excuse the new homeowner from responsibility for paying for the assessment.
If the home is the subject of an HOA lien, the HOA may have a claim to the property and take legal action, despite the fact you gave the seller money in exchange for the title to the property.
You should view any seller reluctant to provide an affidavit of title with extreme caution.
Does Title Insurance help negate unexpected legal issues?
Title insurance is available from a title company, protecting purchasers from financial losses if a lawsuit attacks the title.
It also covers new owners from monetary losses due to unknown restrictions on the title, such as a lease, easement, or city lien for street maintenance.
What Should an Affidavit of Title Include?
An affidavit of title first includes some language that declares the signer is swearing or affirming the facts listed.
It then includes the following information:
- Identifies the seller as the owner of the property;
- Lists the previous names the owner may have gone by (e.g., maiden names before marriage);
States there are no liens, including:
- federal tax liens;
- state tax liens;
- municipal liens;
- mechanic’s liens; or
- other judgments.
- In the alternative, identifies and details the liens that exist;
- If there are easements on the property, detail these; and
- Affirm there were no bankruptcies or no outstanding claims from any bankruptcies.
How to Write an Affidavit of Title
Follow the steps below to write an affidavit of title.
Step 1 – Write Owner Details
1. Owner(s). Provide the current property owner’s (seller’s) full name, date of birth, and social security. Indicate if the owner is a single owner or if there are multiple property owners. If there are multiple owners, provide the same information for each owner.
Step 2 – Enter Marital Information
2. Marital information. If there are multiple property owners, specify whether the owners are married to each other. If yes, provide the date of marriage, any prior names used (i.e., maiden names), and whether the property is or was the principal matrimonial residence.
Step 3 – Enter Contact Details
3. Contact details. Provide the owner’s address, including the street address, city, state, and zip code. Also, provide each owner(s)’s telephone number.
Step 4 – Describe Property
4. Property information. Provide the full address (street, city, state, zip code) of the property subject to this affidavit.
5. Improvements. Specify whether the property has had any additions or substantial improvements made to the property. If yes, provide a description of the additions and/or improvements and the date those were made.
Step 5 – Note Liens and Encumbrances
6. Liens or encumbrances. Provide whether there are any liens or encumbrances against the property. If yes, specify the type of lien or encumbrance whether it is a judgment, tax lien, etc. and provide a detailed description of the lien or encumbrance in the attached Exhibit A.
7. Adverse claim. Specify whether there are any adverse tax claims against the property. If there are adverse claims, provide a detailed description.
Step 6 – Note Any Bankruptcy
8. Bankruptcy. Provide whether the owner(s) has declared bankruptcy in the past. If yes, specify the date of bankruptcy and whether there are any outstanding claims from the bankruptcy.
Step 7 – Fill in the Possession Information
9. Tenant(s). Provide whether current tenants live on the property or any outstanding property leases. If yes, provide the date the lease will expire.
Affidavit of Title Sample
Below, you can find what an affidavit of title typically looks like:
Affidavit of Title FAQs
I have bankruptcy on my record. What happens if I leave it off my affidavit of title?
Do not misrepresent any facts on your affidavit of title, or you could find yourself contending with unwanted legal issues. In this legal document, you are affirming the truth and veracity of your statements under oath.
Misrepresentation, at best, could be construed as fraud.
I want to buy a property, but the owner refuses to sign an affidavit of title. Should I be concerned?
You should be concerned if a person refuses to sign an affidavit of title. A partial list of potential concerns is below:
- The person doesn’t own the property;
- The person owns the property with another person who doesn’t want to sell or doesn’t know about the proposed sale;
- There are liens on the property; or
- The person is not authorized to sell the property for some other reason.
How do I remove a mechanic’s lien from the title if I’ve already paid?
If you have completed the payment, your property should not have a lien. Obtain the proof of payment and send it to the lienholder along with a letter.
Ask them to remove the lien. This is probably just an oversight on the contractor’s part. However, if they refuse to lift the lien, you may have to file a lawsuit to “quiet title.”
The government put a lien on my house. How do I get rid of the lien?
First, you have to pay the amount owed. Next, ask the court to release the lien.
How does a lienholder release a lien?
A lienholder releases a lien by filing a form called a Release of Lien on Real Property, notarizing it, and recording the legal document at the county recorder’s office.
I bought a property with cash and later discovered it had a mechanic’s lien. Shouldn’t the old owner keep responsibility for the lien?
Liens stay with the property, not the person who owned the property. Consequently, the mechanic’s lien and legal issues are now your responsibility.