An affidavit of title is a sworn, notarized statement from the seller of real property confirming they legally own it and disclosing anything they know that could cloud the title. Title insurance companies and lenders require it at closing because public records cannot capture everything: unrecorded easements, verbal agreements with neighbors, recent construction that could trigger a contractor’s lien, and similar off-the-record problems only the seller knows about. Signing one is a serious act. A false statement can expose the seller to a fraud lawsuit from the buyer, a claim from the title insurer, and in theory a perjury charge.
What You’re Swearing To
The exact wording varies by title company and transaction, but most affidavits cover the same ground. The seller confirms they are the owner of record and are not simultaneously selling the property to someone else. They disclose any outstanding liens, tax assessments, or judgments against the property or against them personally. They state whether they have filed for bankruptcy or are in bankruptcy proceedings, since those can create claims against the property.
Beyond ownership and debts, the affidavit asks about things a records search would miss. Recent construction or repair work that could give rise to a contractor’s lien, even if no lien has been filed yet. Known boundary disputes, encroachments from neighboring properties, and unrecorded easements or access rights the seller may have granted. Tenants, occupants, or other parties with rights to use the property under unrecorded agreements.
The document also includes a legal description of the property and the seller’s name and address. When more than one person owns the property, each owner signs. A notary witnesses the signatures and applies a seal, which is what makes it a sworn statement rather than a casual disclosure. The seller signs at or just before closing so the information is current as of the actual transfer date.
Why Title Insurers Require One
A title search examines county records for deeds, mortgages, liens, judgments, and deed restrictions. It is thorough but can only catch what someone recorded. The affidavit of title is how the title company reaches the rest.
Title insurance policies normally come with a list of “standard exceptions,” categories of risk the insurer refuses to cover. These typically include unrecorded easements, rights of parties in possession, and contractor liens for recent work. When the seller swears none of those problems exist, the title company uses the sworn statement as the basis for removing those exceptions from the policy. The buyer ends up with broader coverage. Without the affidavit, a buyer’s title insurance would exclude exactly the kinds of off-the-record problems most likely to surface later.
How It Differs From a Title Search
The two work together but look in different places. A title search is an outside-in investigation: a title abstractor or company reads the public record and reports what is filed against the property. The affidavit is an inside-out disclosure from the seller, capturing what the record cannot show. A neighbor’s informal agreement to use a shared driveway, a contractor who finished a kitchen last month and hasn’t yet filed a lien, a boundary line both neighbors quietly know is in the wrong place. Only the seller knows those facts, and the title company relies on both documents before issuing a policy.
What a False Affidavit Costs You
Because the affidavit is sworn under penalty of perjury, lying on it is not just a breach of contract. Federal perjury carries a maximum sentence of five years in prison, a fine, or both.1Office of the Law Revision Counsel. 18 USC 1621 – Perjury Generally State perjury statutes impose similar penalties. Criminal prosecution over a real estate affidavit is uncommon in practice, but the exposure is real.
The more common consequence is civil liability. A buyer who later discovers the seller concealed a lien, hid a boundary dispute, or lied about the property’s status can sue for fraud. Depending on the jurisdiction and the severity of the misrepresentation, remedies may include monetary damages, rescission of the sale entirely, and recovery of attorney’s fees and transaction costs. The title insurance company can also pursue the seller to recoup any claims it pays out based on the false statement.
This is where sellers underestimate the risk. The affidavit is not a formality to sign without reading. If a seller knows about a problem and fails to disclose it, the sworn affidavit itself becomes the evidence used against them. The signature is what turns a known defect into actionable fraud.
If You’re Unsure About a Potential Issue
Sellers sometimes hesitate because they are uncertain about a potential problem or uncomfortable swearing to facts they cannot fully verify. Most purchase contracts and lender requirements treat signing the affidavit as a condition of closing, so refusing to sign will usually delay or kill the deal. The title company will not issue a policy, and the lender will not fund the loan, without it.
The better move is to disclose the issue directly in the affidavit. The document can note that a specific lien or dispute exists and explain how it is being resolved. Disclosing a known issue does not automatically torpedo the sale; hiding it does. The title company may add a specific exception to the policy for the disclosed item, or the parties may negotiate a solution such as an escrow holdback to cover the risk. Honesty in the affidavit protects the seller far more than silence.
Not the Same as the FIRPTA Certification
Buyers and sellers sometimes confuse the affidavit of title with another document signed at the same closing. Federal law requires that when a foreign person sells U.S. real property, the buyer withhold 15% of the sale price and send it to the IRS.2Office of the Law Revision Counsel. 26 USC 1445 – Withholding of Tax on Dispositions of United States Real Property Interests To avoid that withholding, most domestic sellers sign a non-foreign affidavit certifying under penalty of perjury that they are a U.S. person and providing their taxpayer identification number.3Internal Revenue Service. Exceptions From FIRPTA Withholding That FIRPTA certification deals exclusively with the seller’s tax status. The affidavit of title deals with ownership and property defects. Signing one does not satisfy the other.