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  • Writer's pictureKyle Persaud

The New Affidavit of Citizenship You Must File with Most Land Deeds

If you have any experience with land dealings, you likely know that any time land is conveyed, the deed (or other document conveying the land) must be filed in the county clerk’s office in the county where the land is located. If the conveyance is not filed in the county clerk’s office, the grant of land is still valid, but the grantee will not have “marketable title” – that is, the grantee will not have any legal proof that he actually owns the property.


If you have been involved in any land conveyances after November 1, 2023, you likely know that since November 1, when you file a deed with the county clerk, you must also file an affidavit, with the grantee’s signature, saying that the grantee is a U.S. citizen or is or will become a bona fide resident of Oklahoma. Because of the confusion surrounding this requirement, I thought I would write a blog post describing the main issues.


Background


Since Oklahoma became a state, there has been a law saying that only U.S. citizens, or non-citizens who are or may become “bona fide residents” of Oklahoma, may own land in Oklahoma. The Oklahoma Constitution, article 22, section 1 says:


No alien or person who is not a citizen of the United States, shall acquire title to or own land in this state, and the Legislature shall enact laws whereby all persons not citizens of the United States, and their heirs, who may hereafter acquire real estate in this state by devise, descent, or otherwise, shall dispose of the same within five years upon condition of escheat or forfeiture to the State: Provided, This shall not apply to Indians born within the United States, nor to aliens or persons not citizens of the United States who may become bona fide residents of this State.”


Since 2018, when medical marijuana became legal in Oklahoma, there has been concern about foreign drug cartels buying Oklahoma land to use as marijuana farms. In 2023, in an attempt to remedy this problem, the legislature passed, and the governor signed Senate Bill 212. This bill reads, in relevant part:


On or after the effective date of this act, any deed recorded with a county clerk shall include as an exhibit to the deed an affidavit executed by the person or entity coming into title attesting that the person, business entity, or trust is obtaining the land in compliance with the requirements of this section and that no funding source is being used in the sale or transfer in violation of this section or any other state or federal law. A county clerk shall not accept and record any deed without an affidavit as required by this section.”


Read the full statute online here.


The new law took effect November 1, 2023. The law also requires the Attorney General of Oklahoma to create affidavits that comply with this statute.


Confusion over the New Law


Immediately after the law went into effect, there was confusion throughout the state over which documents actually needed to have an affidavit. All that the law said was “any deed,” but it didn’t define what a “deed” was. Many county clerks placed signs in their offices saying that a “deed” had to have an affidavit filed with it. However, of the 77 county clerks in Oklahoma, many clerks had different interpretations of what documents needed to have an affidavit. Often a deed that had to have an affidavit in one county, didn’t need to have an affidavit in another county. It all depended on how the county clerk felt. There was much discussion of the interpretation of the law on the Oklahoma Bar Association’s online message boards.


The Attorney General’s Attempt to Resolve the Confusion


On February 6, 2024, the Oklahoma Attorney General issued a written opinion, stating which documents had to be accompanied by an affidavit, and which documents did not. To summarize, this opinion said that the following types of documents do NOT need an accompanying affidavit:


1.    Deeds where the grantee is a government body in the United States. This includes the U.S. federal government, the Oklahoma state government, a political subdivision of the Oklahoma state government (such as a city or school district), or an Indian tribe.


2.    Court decrees that affect title to land. This includes probate decrees and divorce decrees. It includes any court judgment that conveys land. The Attorney General said that a court decree is not a “deed”, and so the law does not require a court decree to have an accompanying affidavit.


3.    Deeds that do not transfer title when recording the instrument. These include:


a.    Transfer-on-death deeds. A transfer-on-death deed is a deed that says title will not transfer until the grantor dies. The grantee does not obtain any interest in the land while the grantor is alive, and the grantor can revoke the transfer-on-death deed for as long as he is alive. Because the grantee does not receive any “interest” in the land while the grantor is alive, a transfer-on-death deed does not need an affidavit. For more information on Transfer-on-Death deeds, click here.


b.    Correction deeds. A “correction deed” is a deed that corrects a mistake that was in the original deed. A correction deed does not transfer title; it only corrects a clerical error. Because a correction deed does not transfer title, it does not need a citizenship affidavit.


c.    Affidavits of surviving joint tenant. If two parties own property as joint tenants with right of survivorship, then, when one owner dies, the surviving owner may take an “Affidavit of Surviving Joint Tenant”, along with the decedent’s death certificate, to the county clerk’s office. Because the surviving joint tenant already had an ownership interest in the property to begin with, an affidavit of surviving joint tenant does not transfer property, and therefore does not need any other affidavit along with it. For more information about joint tenancy, click here.


4.    Deeds that convey only oil and gas interests. Because these deeds do not convey “land” these deeds don’t need affidavits.


Any other deed that conveys land, needs an accompanying affidavit.


To read the Attorney General’s opinion in its entirety, click here.


To get copies of the affidavits that you must file with the county clerk, click here.


This law is evolving


Many lawyers and land title professionals are hoping that the attorney general’s opinion will clear up much of the confusion surrounding the new law. However, the landscape surrounding this law is evolving, and those whom the law affects, including county clerks, are constantly learning. New changes and developments will likely come up. If you have questions regarding this law, you may want to contact the Persaud Law Office.

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