What Is An Affidavit of Title?

By J.S. Nogara

When a person sells a house, vacant land or other piece of property, there are certain requirements that must be followed. Most states require an affidavit of title. This article explains an affidavit of title and explains the importance of the affidavit in a real estate transaction.

What Is an Affidavit of Title?

An affidavit of title is a document specifying that that a property seller possesses the title to the property; in other words, it's proof that the seller owns the property. In addition, in an affidavit of title, the seller swears under oath that certain other facts about the property are correct.

What Is Contained in the Affidavit of Title?

While every state law is different, generally speaking, an affidavit of title will contain 1) the name and address of the seller; 2) a statement that the seller is the true owner of the property; 3) a statement that the seller has not sold or entered into a contract to sell the property to another buyer; 4) a statement that there are no liens against the property to be sold; 5) a statement that there are no assessments against the property; and finally, 6) a statement that the sellers have not declared bankruptcy.

Why an Affidavit of Title Is Necessary

An affidavit of title offers many benefits to a buyer. Primarily, it provides added protection against the seller for the buyer that the property is free and clear of any major legal problems involving claims of ownership by other parties. In addition, the affidavit offers the buyer another written document to be used against a seller if any future problems come up when someone claims to have a lien against or ownership of the property. Finally, an affidavit of title can offer guarantees about the property that may not otherwise be available to the seller.

Exclusions in an Affidavit of Title

Every affidavit of title may differ in its details, depending upon the particular circumstances of the real estate transaction (and the state in which its occurring). Frequently, there may be exclusions from the affidavit of title. For instance, there may still be a mortgage on the property that has not been paid off at the time the parties are ready to close on the real estate transaction. As a result, there may be a statement in the affidavit that there is an exclusion for the mortgage on the property.

Who Requires and Obtains the Affidavit of Title?

An affidavit of title is usually required by a title company, which issues title insurance at the closing, to insure that the property is free and clear of any claims and that there are no other owners of the property. The title company will require the seller to execute an affidavit of title in order to ensure that any problems are cleared up at the time of closing.

About the Author

J.S. Nogara began writing in 2000, publishing in legal texts, newspapers, newsletters and on various websites. Her credits include updating "New York Practice Guides: Negligence." She is a licensed attorney admitted to the New York State courts and the Federal Court, Southern District in New York. She has a B.S. from the University of Connecticut, a J.D. and an LL.M. degree.

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