Affidavits - Proper Form

Legal paperwork and procedures that are too general to fit in a specific category.
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Affidavits - Proper Form

Post by editor » Tue Oct 11, 2016 3:34 pm

I think I've written on this topic before, but I've read something recently that makes me want to give some further help. This deals with the proper form and content of affidavits.

It's a maxim of law that a document is what it does, regardless of what the title of that document might be.

For example, there are two very popular types of the deed instrument used to convey land-- 1) Warranty Deed, and 2) Quit Claim Deed. In a warranty deed, the grantor (person conveying the land) promises that he owns the land, and that it is free from any liens or encumbrances which might prevent him from granting complete ownership to the grantee. His promise makes him liable to refund the grantee's money, if it turns out there is a problem with the conveyance. In a quit claim deed, the grantee makes no such promise. He merely says, "I'm not claiming any interest in this land, and I assume no liability, but if I do have any interest, then it's yours." Big difference, huh? It doesn't matter how much you pay someone-- if you accept a quit claim deed in exchange for your money, you can buy the Brooklyn Bridge for ten million dollars from someone who doesn't own it, but if you only get a quit claim deed, you cannot get your money back.

Deeds usually have a big bold-faced title up at the top which is supposed to tell you what kind of deed it is. It will either say, "Warranty Deed", or "Quit Claim Deed". The warranty deed usually contains a clause in the body of the deed which spells out the warranty, or at least says the grantor "conveys and warrants". The quit claim deed contains no such clause. Here's what I'm getting at: If the grantor uses a warranty deed form, and then in the body of the deed he scratches out the "and warrants" language, then it becomes a quit claim deed, even though it still says "Warranty Deed" in the title at the top.

Affidavits are intended to be transcriptions of first-hand testimony, with regard to facts, and only facts. An affidavit becomes evidence, if it is properly written, and filed according to the rules of evidence relevant to whatever forum in which it is being used.

The weight which is placed on that evidence varies, according to the skill with which it is written (includes form, content, thoroughness and coherency), and the veracity of the affiant (person whose testimony is given). For example, an affidavit made by a convicted drug dealer will be given less weight in most forums than one made by the pastor of a church. An affidavit which does not limit itself to facts, but also makes declarations and/or draws conclusions of law, will be given less weight than one which sticks to the facts.

It's also important to remember there are different kinds of facts. For example, if an affiant writes in his affidavit that on January 1st, 2016, he personally witnessed a man he knows personally to be "John Jones" plunge a knife into another man he knows personally to be "Robert Smith", then that is a proper statement for an affidavit. In contrast, if the affiant claims that John Jones committed a crime, that is not a proper statement, since it draws a conclusion of law, e.g. it's possible that Jones acted in self-defence, and it's up to a jury to decide if the law was violated.

It would also be improper to cite the law in an affidavit, since affidavits are reserved for first-hand knowledge of facts. Laws are properly cited in another type of document called "memorandum of law".

Opinions, allegations, and other claims should be made in other types of documents. Some examples are "declaration", "complaint", "notice". These types of documents can make use of affidavits, and memorandums of law, which can be attached to the former and used as supporting evidence.

If you make an affidavit, but you include declarations or conclusions of law within the body of the document, you have destroyed your affidavit, and it becomes what it is-- a declaration. If you cite laws within your affidavit, it is no longer an affidavit, but a memorandum of law. Documents are what they do. If you mislabel them you run the risk of being deemed incompetent, and your documents will not be given the weight you wish them to bear.
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Re: Affidavits - Proper Form

Post by notmartha » Wed Oct 12, 2016 12:19 pm

Great idea to start this topic. I saw the same post, and I've tried to help people revamp their "affidavits" enough to know there is definitely a misunderstanding as to their proper use.
editor wrote:If you make an affidavit, but you include declarations or conclusions of law within the body of the document, you have destroyed your affidavit, and it becomes what it is-- a declaration.
I want to clarify this a bit. The main difference between an affidavit and declaration is that an affidavit must be sworn to. Both are to be statements of fact only, No opinion or emotion should be included. A declaration may be more suitable to someone who has convictions about oath taking:
James 5:12 - But above all things, my brethren, swear not, neither by heaven, neither by the earth, neither by any other oath: but let your yea be yea; and your nay, nay; lest ye fall into condemnation.
Because I'm sure y'all knew they were coming (ha!) here are some definitions. I'll cover declarations in another post.

Webster's 1828
AFFIDA'VIT, noun [An old law verb in the perfect tense; he made oath; from ad and fides, faith.]
A declaration upon oath. In the United States, more generally, a declaration in writing, signed by the party, and sworn to, before an authorized magistrate.
Bouvier’s Dictionary of Law, 1856
AFFIDAVIT, practice.

1. An oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it. It differs from a deposition in this, that in the latter the opposite party has had an opportunity to cross examine the witness, whereas an affidavit is always taken ex parte. Gresl. Eq. Ev. 413. Vide Harr. Dig. h. t.

2. Affidavit to hold to bail, is in many cases required before the defendant can be arrested; such affidavit must be made by a person who is acquainted with the fact, and must state, 1st, an indebtedness from the defendant to the plaintiff; 2dly, show a distinct cause of action; 3dly, the whole must be clearly and certainly, expressed. Sell. Pr. 104; 1 Chit. R. 165; S. C. 18 Com. Law, R. 59 note; Id. 99.

3. An affidavit of defence, is made by a defendant or a person knowing the facts, in which must be stated a positive ground of defence on the merits. 1 Ashm. R. 4, 19, n. It has been decided that when a writ of summons has been served upon three defendants, and only one appears, a judgment for want of an affidavit of defence may be rendered against au. 8 Watts, R. 367. Vide Bac. Ab. h. t.

Black’s Law Dictionary, 1st edition, 1899
affidavit blacks 1.JPG
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Wex Legal Dictionary
Affidavit
A voluntarily sworn declaration of written facts. Affidavits are commonly used to present evidence in court.
Affiant
Someone who signs an affidavit and swears to its truth before a notary public or another person authorized to take oaths, such as a county clerk.
Last edited by notmartha on Thu Oct 13, 2016 11:52 am, edited 1 time in total.
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Re: Affidavits - Proper Form

Post by editor » Wed Oct 12, 2016 9:48 pm

As notmartha stated, an affidavit is a declaration given under oath; the oath being the principal difference.

But what I want to be sure readers understand, is subtle differences between what can be said in an affidavit, as opposed to what sort of statements can be made in a simple notice or declaration. I'm going to post an example of each. One document is an affidavit, the other is a notice/declaration.

The documents have been cleansed of the specific names places and dates, but should illustrate my point. They do not demonstrate a choice or alternative of how to style documents: both of these documents were filed back to back with the county recorder, with the intent that each should compliment the other. The affidavit stands as supporting evidence for the notice. Got it?

Pay special attention to the fact that the author states only facts in the affidavit, whereas in the notice/declaration he is willing to draw conclusions of law, and give notice of civil and criminal penalties.
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Re: Affidavits - Proper Form

Post by editor » Wed Oct 12, 2016 9:54 pm

Here is a proper affidavit. Notice that all of the statements are strictly limited to facts only.

The affiant does state his opinion at one point, but he declares it to be his opinion, which makes it a factual statement.
AFFIDAVIT of TRUTH
==================


State of _________________ )
) S.S.
County of _______________ )

Personally appeared before me, the undersigned authority in and for said County and State, the Affiant, John Doe, whose mailing address is: 123 Anystreet, Yourcity, State, and who, after first being duly sworn by me, states on oath that he is more than twenty-one years of age; that the statements hereinafter set forth are true and complete of his own first-hand knowledge as follows, to-wit:
  1. This Affidavit is made in regard to lands lying within Yourtownship Township, Yourcounty County, State of State and described as follows, to-wit:
    1. Plat of Any Name Subdivision#1 (123/4567)
    2. Plat of Any Name Subdivision#2 (890/1234)
  2. The original developer for the above-referenced Plats was Jim Doe, and XYZ Co., Inc. Jim Doe (now deceased) was the president and owner of XYZ Co., and my father; I am now president of XYZ Co., Inc., and the trustee for the successor-in-interest to both Jim Doe and XYZ Co., Inc.
  3. I have also worked for more than twenty years in various capacities for which one of my primary jobs is the research of land titles, and the building of abstracts of title and title opinions.
  4. I have recently researched the history of the restrictive covenants binding the above-referenced Plats. The Developer filed separate declarations of covenants for each plat. The numbers listed beneath each of those Plats as shown above, for example 123/4567, indicate the Yourcounty County Register of Deeds Liber and Page references affecting each of the various Plats. The first Liber/Page reference appearing in the list for each Plat is the main body of restrictions, which I will hereinafter refer to as "General Covenants." In the earlier Plats, additional restrictions were filed, as shown in the listings. In later plats, those additional restrictions were filed together with the General Covenants and require no additional reference.
  5. According to my research, the General Covenants were identical for all the Plats. The additional restrictions were mostly identical, with the following exceptions:
    1. Specific health restrictions were applied to various lots, and
    2. Additional building and use restrictions were applied to the Plat of South Any Name.
    For earlier Plats these additional restrictions were filed via separate documents; for later Plats the additional restrictions were combined in one instrument together with the General Covenants.
  6. The General Covenants all contained a typographical omission, in that the scrivener neglected to label the transition between Article VII, and Article VIII. This resulted in Article VII – Section 4 being directly followed by Section 1 (Duration), Section 2 (Notices), and Section 3 (Enforcement). It seems to me that any reasonable man would deem this to be Article VIII, and I will hereafter refer to it as Article VIII. I mention this to avoid confusion, as some of the General Covenants filed later contained an Article VIII which embodied the above-referenced additional covenants.
  7. Article VIII, Section 1, Duration, of the General Covenants is hereby quoted verbatim, as follows:
    Article VIII, Section 1. Duration. The covenants and restrictions of this Declaration shall run with and bind the land and shall inure to the benefit of and be enforceable by The Association, or the owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then owners of two-thirds of the lots, subject to this Declaration, including all lots if any still owned by the Developer or its successors or assigns, has been recorded, agreeing to change said covenants and restrictions in whole or in part. Provided, however, that no such agreement to change shall be effective unless made and recorded three (3) years in advance of the effective date of such change, and unless written notice of the proposed agreement is sent to every owner at least ninety (90) days in advance of any action taken.
  8. On July 10, 1991, an instrument was filed with the Yourcounty County Register of Deeds at Liber 567, page 890, entitled Declaration of Restrictive Covenants, Any Name Property Owners Association. Said Instrument purported to affect the Plats referenced in paragraph 1 above, and claimed that it "replaces and supersedes all prior declarations recorded for any of the [Plats]." The Instrument was signed by Bob Overreach, president, and by Knowle Au Thority, director, both of the Any Name Property Owners Association. Other than the signatures of two witnesses, one of which also acted as Notary Public, no other signatures appeared on the Instrument.
  9. On February 13, 2001, an instrument was filed with the Yourcounty County Register of Deeds at Liber 124, page 568, entitled Declaration of Restrictive Covenants, Any Name Property Owners Association. Said Instrument purported to affect the Plats referenced in paragraph 1 above, and claimed that it "replaces and supersedes all prior declarations recorded for any of the [Plats]." The Instrument was signed by Non Righteous, president, and by P. T. Tyrant, secretary, both of the Any Name Property Owners Association. Other than the signatures of two witnesses, one of which also acted as Notary Public, no other signatures appeared on the Instrument.
  10. On February 13, 2001, an instrument appearing to be an affidavit was filed with the Yourcounty County Register of Deeds at Liber 124, Page 571, in which the Declarant/Affiant attaches a copy of the Declaration mentioned in paragraph 9 above and recorded at Liber 890, Page 895, and claims in part:
    "3. The attached Declaration of Restrictive Covenants were adopted by the requisite number of votes of the owners of lots in Any Name and the related plats described in Exhibit "A" to the attached Declaration (collectively, the "Subdivision").
    4. "The owners of more than seven hundred (700) lots in the Subdivision voted at the meeting of the Association held on October 24, 1998, and its adjournments, to adopt the attached Declaration which were duly adopted by the Association on September 30, 2000."
    Other than the signatures of two witnesses, one of which also acted as Notary Public, no other signatures appeared upon the Instrument. The acknowledgment on this instrument does not, in my experience, meet the statutory requirement for an affidavit.
  11. I conducted a diligent search of the records in the office of Register of Deeds in and for Yourcounty County, State, looking for any instruments containing the signatures of owners of lots within above-referenced Plats in support of either or both of the instruments above-mentioned in paragraphs 8 and 9, and found none.
  12. Beginning with first development, and continuously unto the present date, Jim Doe and XYZ Co., Inc., and their successors-in-interest have been members of Any Name Association and owners of land within some of the above-referenced Plats. From at least 1988 and until his death in September of 2001, Jim Doe made it his habit and practice to consult with me on all legal matters, both personal, and corporate. He never once mentioned to me he had received prior notice of any initiative to amend or replace the restrictive covenants for the above-mentioned Plats. Further, I have access to extensive records with regard to both XYZ Co., Inc. and Jim Doe, and having searched through them diligently I can find no evidence that Jim Doe or XYZ Co., Inc. were ever given prior notice of any initiative to amend or replace the restrictive covenants for the said Plats.
Further, Affiant saith naught.

______________________________
John Doe, Affiant

Subscribed and sworn to before me, a duly authorized Notary Public, this 30th day of November, 2020 by John Doe.

_____________________________
Notary Public
[seal]
My Commission expires: ________________


Prepared by John Doe, [mailing address]
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Re: Affidavits - Proper Form

Post by editor » Wed Oct 12, 2016 10:04 pm

This is a notice/declaration, in which it is okay to include conclusions of law and notice of civil and criminal penalties.
Notice and Declaration of
Void Covenants and Usurpation of Franchise


This Notice and Declaration is made with regard to the various plats referenced herein-below, all of which Plats shall hereinafter be collectively referred to as The Subdivision, in Yourcounty County, State; the restrictive covenants to which said Plats are subject; and the Any Name Property Owners Association, Inc. , a State non-profit corporation which was created by, and given franchise subject to the said restrictive covenants.

Whereas, the plat of Any Name Subdivision#1 was recorded on 09/24/1973, at Plats 5, Page 97, in the records of the Register of Deeds, hereinafter referred to as "Registrar", in and for Yourcounty County, State, and made subject to a Declaration of Restrictive Covenants, hereinafter referred to as "De Jure Covenants", and recorded with the Registrar on 09/24/1973 at Liber 234, Page 567; and

Whereas, two additional plats were subsequently filed with the above-named Registrar, each of them subject to the same De Jure Covenants, as detailed in the following chart:
For the chart of Plats and the recording information therefor, reference is made to Exhibit A, attached hereto, and made a part hereof.
Whereas, the Any Name Property Owners Association, hereinafter referred to as "ANPOA", is a non-profit State corporation, which was originally incorporated by the developer of The Subdivision, pursuant to, and subject to the De Jure Covenants, and empowered by the developer with certain specific rights of franchise, subject to the De Jure Covenants, with regard to The Subdivision; and

Whereas, the De Jure Covenants include a provision which sets forth a detailed and specific procedure by which such De Jure Covenants may be amended, to-wit:
Article VIII, Section 1: Duration. The covenants and restrictions of this Declaration shall run with and bind the land and shall inure to the benefit of and be enforceable by The Association, or the owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then owners of two-thirds of the lots, subject to this Declaration, including all lots if any still owned by the Developer or its successors or assigns, has been recorded, agreeing to change said covenants and restrictions in whole or in part. Provided, however, that no such agreement to change shall be effective unless made and recorded three (3) years in advance of the effective date of such change, and unless written notice of the proposed agreement is sent to every owner at least ninety (90) days in advance of any action taken.
And Whereas, on 07/10/1991, a document entitled Declaration of Restrictive Covenants, hereinafter referred to as "De Facto Covenants #1" was recorded with the Registrar at Liber 567, Page 890, which purported to have been drafted by the ANPOA, and was executed by only Bob Overreach, acting as its President, and Knowle Au Thority acting as its Director, and which purported to set forth an entirely new set of restrictive covenants for The Subdivision, claiming to replace and supersede the De Jure Covenants; and

Whereas, on 02/13/2001, a document entitled Declaration of Restrictive Covenants, hereinafter referred to as "De Facto Covenants #2" was recorded with the Registrar at Liber 124, Page 568, which purported to have been drafted by the ANPOA, and was executed by only Non Righteous, acting as its President, and P. T. Tyrant acting as its Secretary, and which purported to set forth an entirely new set of restrictive covenants for The Subdivision, claiming to replace and supersede the De Jure Covenants; and

Whereas, the De Facto Covenants #2 were attached to an instrument appearing to be an affidavit, executed on 02/13/2001 by the same Gerald W. Cornell, acting in the capacity of President of the ANPOA, and recorded with the Registrar at Liber 124, Page 571, in which the Affiant made the following statements to which he is not certified to have sworn or affirmed, as the acknowledgment is insufficient to qualify the document as an affidavit:
"3. The attached Declaration of Restrictive Covenants were adopted by the requisite number of votes of the owners of lots in Any Name Subdivision and the related plats described in Exhibit "A" to the attached Declaration (collectively, the "Subdivision").
4. The owners of more than seven hundred (700) lots in the Subdivision voted at the meeting of the Association held on October 24, 1998, and its adjournments, to adopt the attached Declaration which were duly adopted by the Association on September 30, 2000."
And Whereas, a diligent search of the records of the Registrar was made, as evidenced by affidavit duly sworn and subscribed by John Doe on 11/30/2020 and recorded with the Registrar at Liber __________, Page __________, and no evidence was found of any document(s) bearing the signatures of a two-thirds majority of owners of lots within The Subdivision as required by the De Jure Covenants; and

Whereas, at least one owner of lots within The Subdivision has come forward under oath, as evidenced by the same affidavit of John Doe, mentioned hereinabove, who claims to have never received prior notice of intent to amend the De Jure Covenants, and to have never been provided with a prior copy of any proposed agreement as required by the De Jure Covenants; and

Whereas, the De Facto Covenants #1 at Article VI, and De Facto Covenants #2 at Article X, claim to become effective on the date of recording with the Registrar, in violation of the requirement by the De Jure Covenants that "no such agreement to change shall be effective unless made and recorded three (3) years in advance of the effective date of such change," and

Whereas, the De Facto Covenants #2, at Article II, Section 18, state the following:
Each property is subject to the By-laws imposed by the Association from time to time, and/or rules and regulations pertaining to the Subdivision. To the extent that the provisions of any of these documents are or may become inconsistent with each other, the provisions of the By-laws shall prevail over the Declaration (and the rules and regulations) and the Declaration shall prevail over the rules and regulations.
And Whereas, De Facto Covenants #1 and De Facto Covenants #2 and their associated By-laws each claim rights on behalf of ANPOA to which ANPOA was never granted or entitled by its franchise, and claims to place restrictions upon the landowners in The Subdivision to which said landowners did never lawfully consent; and

Whereas, the ANPOA has adopted by-laws by which it operates, and within said by-laws the ANPOA purports to have the authority to exercise and enforce various rules and regulations over the private property of landowners within The Subdivision which are not contained within the De Jure Covenants or either of the De Facto Covenants, without the need to amend the Covenants or record with the Registrar any notice whatsoever, and which rules and regulations, if enforced, would infringe upon the lawful rights of the various owners, and

Whereas, the ANPOA has enforced, and/or attempted to enforce, some and/or all of said rules and regulations, through various means including but not limited to the sending of letters and the actual collection of fines, thereby causing an infringement of rights and a very real damage upon various owners of lots within The Subdivision, and

Whereas, the De Jure Covenants, in Article II, Section 5, state:
"Any owner of real property in plats of Any Name Subdivision shall have the right to prosecute any proceedings at law or in equity against any person or persons violating or attempting to violate any covenant contained herein, either to prevent him or them from doing so or to recover damages or other dues for such violations. Invalidation of any one of these covenants by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect."
And Whereas, the De Jure Covenants, in Article VIII, Section 3, state:
Enforcement. Enforcement of these covenants and restrictions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or recover damages, and against the land to enforce any lien created by these covenants; and failure by the Association or any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
And Whereas, this Declarant is trustee for the successor-in-interest of an owner of real property within The Subdivision;

Now Therefore:

I, John Doe, the undersigned Declarant, by the power and authority vested in me as an owner of real property within The Subdivision, by Article II, Section 5, and Article VIII, Section 3 of the De Jure Covenants, do hereby declare, and give notice of the following:
  1. The above-referenced De Facto Covenants #1 and De Facto Covenants #2 are void ab initio.
  2. The By-laws for the ANPOA, to every extent that they exceed the franchise of the ANPOA as granted in the De Jure Covenants, are void ab initio.
  3. On behalf of XYZ Co., Inc., the XYZ Trust, and myself, I hereby claim all the rights originally granted and reserved by the De Jure Covenants unto the property owners of The Subdivision, and also all the rights reserved therein by the Developer, and the successors in interest to the Developer.
  4. Notice is hereby given to ANPOA that it has exceeded the bounds of its franchise and usurped powers it was never lawfully granted. Notice having been duly given, ANPOA will henceforth be subject to all due penalties of law if it continues to exercise powers it does not lawfully possess under its de jure franchise, and it may be held liable for both civil and punitive damages.
  5. Notice is hereby given to officers of ANPOA and all persons acting under color of law in their employ or agency, that any damages done by persons acting outside the scope of authority of the lawful franchise of ANPOA may subject such actors to civil and/or criminal penalties in their own personal capacities.
In Witness whereof, the undersigned Declarant has executed this instrument on this ______ day of ___________________, 20_____.

Declarant:



______________________________
John Doe
Individually, and as President,
XYZ Co., Inc.
and as Trustee for XYZ Trust

State of State )
) S.S. Acknowledgment
County of Yourcounty )

Before me, the undersigned, a Notary Public, within and for said County and State, on this the ________ day of _______________, 2020, personally appeared _______________________, to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act and deed, in his individual capacity, and as president of XYZ Co., Inc., and as Trustee for XYZ Trust, for the uses and purposes therein set forth.

IN WITNESS WHEREOF, I have hereunto set my official signature and affixed my official seal the day and year last above written.

_____________________________________
Notary Public
Notary Public in and for County of __________________, State of _____________________

My commission expires: _____________________


Prepared by: John Doe, [mailing address]
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Re: Affidavits - Proper Form

Post by notmartha » Thu Oct 13, 2016 12:04 pm

"Conclusions of Fact" and "Conclusions of Law" are defined HERE.


The attached PDF has much information concerning elements needed for an affidavit to be legally sufficient, including examples and case citations.
Attachments
3-Am-Jur-2d-AFFIDAVITS-SECTIONS-1-20.pdf
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The Jurat

Post by notmartha » Fri Oct 14, 2016 1:09 pm

If you want them recognized by STATE as "evidence", affidavits, verifications and oaths/affirmations require jurats.

WEX Legal Dictionary
jurat

(jur-at) From the Latin "to swear." A jurat is the portion of an affidavit or deposition in which a person swears that the contents of the written statement are true. It usually includes the date, the name of the person swearing, the name of the authority before whom the oath was made, and sometimes the place where sworn -- for example, "Sworn to this 12th day of October, 2008, by Martha J. Milner, before me, a notary public for said state and county. Barbara A. Stenerson, Notary Public."
Here is a slightly altered example from a notary manual:
JURAT notary manual.JPG
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