Affidavit Lease Agreement Defined
An affidavit lease agreement is a legal document that provides evidence of a lease agreement that is not made in a specific prescribed form as required by the Land Registration Act. Affidavit Lease Agreements are usually entered into for a short period of time (e.g. two years) and can sometimes provide for a long period of notice for termination. Affidavit Lease Agreements are often used when one or more of the parties to the lease agreement has had problems in the past (e . g. the tenant has a bad credit history). As a result, members of the public may be prohibited from viewing the lease agreement in the Department of Lands and Surveys. Where an affidavit lease is required, the agreement must be drafted in such a way that it is in compliance with the Land Registration Act and it must be signed by both the lessor and the lessee before registration at the Land Registry Office.
Elements of an Affidavit Lease Agreement
Commencing with the affirmation of facts, and the identity of the parties, an affidavit lease agreement generally includes the following:
- Affirmation of facts. An affirmation of facts is a sworn attestation that the facts as stated in the document presented are, to the best of the affiant’s knowledge, true. A simple affirmation may state "To the best of my knowledge, the information contained in this document is true." A more formal affirmation provides specific facts, such as the parties’ names and identification, the property being leased, the period of time the property is being leased, and the amount of the last monthly rent payment. The "period of time" should state specific dates for the start and end of the lease period.
- Names and signatures. Affidavit lease agreements typically include a brief description of the parties and a copy of the parties’ state-issued identification cards (e.g., driver’s licenses) attached as exhibits. Depending on the laws of your state, you may also be required to provide attestation signatures and/or witnesses.
- Supporting facts. Supporting facts are necessary when the affiant has personal knowledge concerning certain statements but does not have direct knowledge. For instance, an affiant may have recently viewed a home being vacated by the tenant and, while examining the home, learned that the home is infested with roaches. Whether or not the affiant witnessed the infestation, the contract may state that … these facts have a direct bearing on the case at hand.
- Exhibits. To make an affidavit lease agreement more convincing, you may want to include exhibits (additions to the basic document that provide supporting evidence) that substantiate your affidavit. Exhibits should be referenced in the body of the agreement.
How to Write an Affidavit for a Lease Agreement
First and foremost, when preparing an Affidavit of the Lease Agreement, one of the most important things to do is to check to see if the State the Landlord resides in, and the State where the Subject Property is located, have any specific legal requirements for what information must or must not be contained in the Affidavit.
Once you’ve checked the requirements of the states involved, the next step is to include basic identifying information, including: address of both the landlord and the tenant, the address of the subject property, the dates of the lease term, and the signature of the landlord. Providing all of this information is not only useful to you if you need to re-issue the document, but also to the Court.
You’ll also want to make certain that you include and specify all amounts due under the Lease Agreement, and the manner in which they have been calculated. This is crucial, as it provides your tenant the opportunity to dispute the amount claimed. Simply saying that a certain dollar amount is due will not suffice, if not explained.
Finally, you can prepare a table of each month’s rent payment, and when any missed payments became past due. This is an extremely effective way of visualizing any problem the Court may have with your Affidavit.
Of course, the availability of an Affidavit depends on the State the Property is located in, so you should check your rules of civil procedure in order to determine if you will be able to utilize one. Once you have gone through the process of drafting and you’re ready to issue your Affidavit of the Lease Agreement, don’t forget to sign it! The Affidavit must be sworn to be true and correct, and upon that signature line, often there is a signature from a notary public.
Necessary Legalities
Affidavit lease agreements are often used informally, but there are legal requirements and considerations to keep in mind when creating or using one. These requirements may vary by jurisdiction, but some common aspects to consider include the need to have the affidavit notarized, to have the parties consent to binding legal actions such as rent garnishments, and to comply with any other local laws regarding lease and rental agreements.
The requirements will vary, for instance Rules 1008, 1009, and 1017 of the Federal Rules of Civil Procedure specifically state how affidavits must be used . Any legal requirements will also vary by jurisdiction. For example in California, for a lessor to garnish a bank account, he or she must file an writ of attachment and have the tenant/judgment debtor served with a writ of execution and the lessor must record a declaration of total amounts due by the judgment debtor.
In addition to the legal requirements, it is important to note that if the lease contains provisions that go against public policy, such as waiving the right to sue for personal injury or allowing for punitive damages and attorneys fees, then those provisions would not be legally enforceable.
Scenarios Necessitating Affidavit Lease Agreements
Affidavit Lease Agreements are commonly used in the following circumstances:
- A Tenant Transfers its interest in a lease to a new tenant or subtenant – the new tenant or subtenant may wish to provide the new landlord with a sworn reaffirmation of its understanding of the lease terms. An Affidavit Lease Agreement may be appropriate in place of a separate Assignment and Assumption of Lease or Sublease and Assumption of Lease.
- A party wishes to confirm that the terms of the lease are as stated in a certain document – if the original lease is lost or unavailable, the parties to the lease may wish to provide a sworn reaffirmation of its understanding of the lease terms. In such circumstances, the Affidavit Lease Agreement may attach a copy of the lease.
- To clarify points of disagreement as to the terms of the lease – a party may wish to provide a sworn affirmation of its understanding of the terms of the lease.
Advice for Tenants and Landlords
For Tenants:
· Affidavit leases should be simply drafted so that there is no question about the terms of the lease; no clauses should be added that could potentially be misinterpreted
· Review all terms carefully before signing to clearly understand the terms of the lease
· Ensure that the property and person signing the affidavit for the landlord can be individually identified, even if you know them well as a friend or family member
· Confirm the same person who signed the affidavit is able to understand their obligations under the lease and has the authority to enter into a lease with you
· Have the original written lease signed even if there is a tight time frame as you will still need to have it signed at some point to be able to properly register and enforce it at the LTB
· Have the original written lease signed by all parties as soon as possible after the affidavit lease has been signed and in accordance with any timelines outlined in the affidavit
For Landlords:
· Ensure only the names and other information that need to be included in the affidavit are included in the affidavit; do not include other information if it is not required
· Avoid including too many clauses and ensure they are clear and easy to understand; simple terms and clauses are best
· Only use one affidavit for one person – if you use the same affidavit for more than one person, it is likely that some of the information included in the affidavit may not be accurate
· Be clear and specific about what the requirements of the tenant are for signing the lease
· Ensure that the person who has signed the affidavit is able to understand the terms and obligations required of them and is able to understand their obligations under the lease; this may require having another form of identification beyond just the identification listed in the affidavit to verify their identity
