What’s a mortgage affidavit?

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A mortgage affidavit is a written statement signed by a party to a real estate transaction under penalty of perjury that certifies certain conditions of the property. The person signing the document presents information that the person knows is true and would be willing to testify if required by a court. Title companies often require these documents from property buyers and sellers to support the legal status of the property as the parties represented it to underwrite a title insurance policy.

There are few legal requirements for an effective mortgage affidavit. Most jurisdictions require all affidavits to be signed and witnessed by a third party or sworn in before a notary public. Statements made in the affidavit must be made voluntarily and are limited to what a person knows to be true from direct knowledge or observation. A person who lies on a public record can be convicted of perjury in the same way that a person who lies on a witness stand can be sued by a private party who relied on the false statements.

There are various types of mortgage affidavits. Since the document is essentially just a statement of fact, it can be used in any circumstance involving a mortgage, whenever one party is required to provide proof of the condition of the property. For example, a homeowners insurance company may require a landlord to submit a mortgage affidavit certifying the completion of construction work on the property in order to release the insurance proceeds to a contractor. In some jurisdictions, the owner of a reverse mortgaged property may file a mortgage affidavit with the deed recorder to attest to the mortgage status and that it is held by a person of a certain age in order to exempt the property from taxation.

One of the most common uses of a mortgage affidavit in the context of title policies is the “antique mortgage affidavit.” A securities company will ask a seller to prepare this type of affidavit if there has been a mortgage passed on the property with no record of satisfaction with the mortgage. Before the titular company issues an insurance policy, it requires the seller to swear that the past mortgage has been paid off and that a mortgage satisfaction was never issued. In this way the owner company is able to issue the policy while indemnifying itself from an unforeseen accident.

Another common type of mortgage affidavit used by securities companies is the composite mortgage affidavit. This type of affidavit is signed by both the buyer and the seller. It recites a long list of basic statements made by the parties about the property that the title company will rely on to issue the policy, including that there are no outstanding contracts, easements, or leases affecting the property and that the parties are aware of any existing covenants, conditions or restrictions.

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