Title Tips - July 2015
TITLE TIPS BY JOE VITULLO - JULY 2015
AFFIDAVITS - Where allowed by law, title affidavits are extremely useful in supplementing and clarifying the land records with off-record facts. Affidavits are written statements containing facts known personally to the affiant, confirmed under oath before a notary public, and offered to prove the truth of the matters stated therein. The final statement, below the affiant's signature ("Subscribed and sworn to before me this day of ") is called the "jurat." Sometimes jurats are mistakenly included in deeds in place of an acknowledgment. Title affidavits, where allowed, can be used to preserve the statements of affiants with personal knowledge concerning real estate titles. They can be used to state family facts such as birth, age, sex, marital status, death, names and aliases, residence, identity, capacity of grantors and grantees and other family history. They are also used by surveyors and engineers to link legal descriptions with Assessor's Plat and Lot numbers and to rectify scrivener's errors or omissions.
Even though affidavits are made under oath, they are generally inadmissible in Court, because they constitute hearsay. Furthermore, even though the law makes it possible to use public records as evidence of ownership in a judicial proceeding, hearsay evidence is not admissible. Basically, affidavits are objectionable as hearsay because the statements contained in them are not subject to the ordinary tests required by law for ascertaining their truth. The affiant is not subject to cross examination and there is no opportunity for interested parties to investigate the affiant's character or motives. When an affidavit is admitted as evidence, it is usually because it constitutes one of the many exceptions to the hearsay rule, as when the court finds it to come under the business records exception or the statements concern minor, routine items and the witness is unavailable. In order for title affidavits to be admissible, a state legislature must enact a special statute allowing their admissibility as prima facie evidence of the facts they contain. With a few exceptions, title affidavits are not recognized by statute in Rhode Island and would be objectionable as hearsay and inadmissible in court. This is not true in Massachusetts and Connecticut where title affidavits are recognized by statute and routinely used to cure title problems. This is even so concerning the venerable Affidavit of Family Facts. Even though it has always been cited by the Rhode Island Title Standards as necessary to supplement the record, where title is obtained from the heirs of an interstate decedent, no statute recognizes it as an exception to the hearsay rule (Standard No. 8.2; Standard No. 8.4; Practice Standard No. 4.1). Fortunately, it gets a veiled recognition as an exception to the hearsay rule in the Rhode Island Rules of Evidence, Rule 803 (a) (14) & (15). These sections make both vital statistics and records affecting an interest in property admissible, if they are the record of a public office and an applicable statute requires the records to be made, as in the case of vital statistics, or authorizes the recording of documents of that kind, as in the case of deeds. The statute authorizing the recording of land documents is R.I.G.L. 34-13-1, which lists the documents eligible for inclusion in the land evidence records. Title Affidavits (e.g. Scrivener's Error Affidavits) are not included, although Affidavits of Family Facts are on the list. Consequently, even though they have no statute recognizing them, the R.I. Rules of Evidence state that they should not be excluded as hearsay. An example of a specific statute recognizing affidavits would be R.I.G.L. 34-13-3 which recognizes foreclosure affidavits or any affidavit relative to fiduciaries, etc. acting under a power of sale dependent upon publication of a notice in a newspaper. The foreclosure affidavit, for instance, recites all the actions the affiant has taken on behalf of the mortgagee to effect a valid foreclosure. By statute, such affidavits are deemed to constitute prima facie evidence of the truth of the matters stated therein. Otherwise, they would be inadmissible as hearsay.
With the exception of the foregoing, when there are gaps in a Rhode Island chain of title, the use of an affidavit to supply needed facts, even if the affidavit gets recorded, will not be admissible as proof of ownership in a judicial proceeding. Since title insurance policies insure record title, title affidavits are technically useless to cure defects in the record without a specific statute making them admissible as evidence of the facts they contain. Scrivener's Affidavit's explaining obvious errors in recorded documents are also useless without a specific statute making them admissible as exceptions to the hearsay rule. Without statutory recognition of these tools, they remain only wishful thinking for Rhode Island lawyers and of no use to the public proving the ownership of their land.
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