AFFIDAVITS AND RECITALS
6.1 Affidavits in General
(a) Utilization of affidavits is an acceptable practice and reasonable reliance may be placed thereon. Proper and recorded affidavits constitute notice of the facts recited therein and create a rebuttable presumption that such facts are true and correct. However, absent extraordinary circumstances, affidavits should not be utilized in lieu of normal conveyancing, probate or judicial procedures.
Comment: Certified copies of certificates of death, birth and marriage are preferable to affidavits to establish the facts of death, birth and marriage, respectively. However, such certified certificates may best be incorporated in an affidavit in order to facilitate introduction into the chain of title.
(b) Affidavits should reference the current property owner and a recorded instrument in the chain of title. Affidavits should address the entire issue which is the subject of said affidavit, state facts rather than conclusions, and not be worded so as to mislead or leave unanswered questions.
(c) Affidavits may be made by any person, even those connected with the chain of title, and should set forth information within the personal knowledge of the affiant. Comment: The affidavit may set forth in the body of the document that affiant is acting in some capacity which is a source of authority or insight as to the facts set forth therein. However, the facts recited are to be those personally known to the affiant and not to a corporation, grantor of a power of attorney or other represented person or entity, and no corporate title or other representative designation should be indicated for the signatory.
(d) Affidavits should be given under oath before and attested by a notary public or other official authorized to take an oath.
Factual recitals in conveyances are widely utilized but such recitals do not comply with the statutory requirements of an affidavit. Generally, such factual recitals should be for purposes of information and not in lieu of an affidavit. However, certain conclusive presumptions of law arise regarding recitals in conveyances as against the grantor and those claiming under said grantor, and regarding recitals in ancient deed and other instruments more than thirty years old. Recitals are most useful when supported by matters of public record other than the deed records.
6.3 Affidavits of Possession
Affidavits of the history of the possession of the property should set forth the period of time with which the affiant has been familiar with the property, the names of those current and prior owners of the property of which the affiant has knowledge, and the indicia of ownership upon which such knowledge is based. Affiant may be a party in interest or a disinterested party. Comment: The underlying purpose of such affidavit being to establish adverse possession, affiant should normally be familiar with the history of the property for not less than seven years, although circumstances may dictate a still longer period. Although affiant may be a party in interest, preference should be given to one having no interest in the property.
6.4 Affidavits of Descent
Documentation of the family history of a deceased holder of record title and potential heirs thereof establishes that all parties have been or should be properly divested. Such affidavit should state the residence, date of death and testacy or intestacy of the deceased, identify all spouses, indicate death with or without issue, identify children and grandchildren, and disclose respective dates of death or addresses, and disabilities, as applicable. The affidavit should identify the number of marriages including date, place and evidence thereof, i.e., marriage record in court records or lack of knowledge, how marriages are terminated, i.e., death or divorce including style of case, decree date, case number, from which court obtained and any other relevant information; issue by birth or adoption and if adopted such information as can be obtained including birth certificates. The affidavit should indicate whether all debts including estate or inheritance taxes have been paid.
Comment: Affidavits of Descent will almost always need to be from someone in the family of the decedent and therefore very well could be a party in interest. This fact should not detract from the reliance placed upon the affidavit.
6.5 Scrivener’s Affidavits
Scrivener’s affidavits may be utilized by the preparer of a document, or other party in a valid position to know, to correct clerical errors when the original parties are unavailable. Such corrections should be unquestionably the original intention of the parties, minimal in extent, and supportable by extrinsic evidence if called into question and should be recorded.