SWEAR OR AFFIRM  - OATH OR AFFIRMATION?

OATH OR AFFIRMATION REQUIRED IN DEED

382.135 Statement of consideration or market value required in deed to real

property -- Exceptions

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CERTIFICATION OF SELLING PRICE OF REAL PROPERTY

This clause is required to be included and completed  with every deed in the Commonwealth of Kentucky.

                                          SUGGESTED FORMS

VERSION ONE:

The undersigned,    JOHN SELLOR AND MABLE SELLER      , Grantors, and     JACK BUYER AND MINNIE BUYER  , Grantees, do hereby further certify, pursuant to KRS Chapter 382, that the full cash value of the property herein conveyed is    $500,000        . 

They further certify their understanding that falsification of the stated consideration or sale price of the property is a Class D felony, subject to one to five years imprisonment and fines up to             

VERSION TWO:

The undersigned hereby swear and affirm, under penalty of perjury, that the consideration recited in the foregoing instrument is the full actual consideration paid or to be paid for the property transferred hereby.  The parties of the second part join this Deed for the sole purpose of certifying the consideration. This Deed is a transfer between parent and child and is therefore exempt from transfer tax pursuant to KRS 142.050(7)(1).

This statement is required by KRS 382.135

382.135 Statement of consideration or market value required in deed to real

property -- Exceptions.

(1) In addition to any other requirement imposed by law, a deed to real property shall

contain the following:

(a) The mailing addresses of the grantor and grantee;

(b) A statement of the full consideration; and

(c) In the case of a transfer other than by gift, or with nominal or no consideration

a sworn, notarized certificate signed by the grantor or his agent and the

grantee or his agent, or the parent or guardian of a person under eighteen (18)

years old, that the consideration reflected in the deed is the full consideration

paid for the property;  or

(d) In the case of a transfer either by gift or with nominal or no consideration, a

sworn, notarized certificate signed by the grantor or his agent and the grantee

or his agent, or the parent or guardian of a person under eighteen (18) years

old, stating that the transfer is by gift and setting forth the estimated fair cash

value of the property.

(2) The deed filing requirements listed in subsection (1)(b) and (c) of this section shall

not apply to:

(a) Deeds which only convey utility easements;

(b) Deeds which transfer property through a court action pursuant to a divorce

proceeding;

(c) Deeds which convey rights-of-way that involve governmental agencies;

(d) Deeds which convey cemetery lots; and

(e) Deeds which correct errors in previous deeds conveying the same property

from the same grantor to the same grantee.

(3) In the case of an exchange of properties, the fair cash value of the property being

exchanged shall be stated in the body of the deed.

(4) In the event of a transfer of property by will or under the laws of intestate

succession, the personal representative of the estate, prior to closing out the estate,

shall file an affidavit with the county clerk of each county in which any of the

property is located, which shall contain the following:

(a) The names and addresses of the persons receiving each property passing by

will or intestate succession; and

(b) The full or fair market value of each property as estimated or established for

any purpose in the handling of the estate, or a statement that no such values

were estimated or established.

(5) No county clerk or deputy clerk shall lodge for record, and no county clerk or

deputy shall receive and permit to be lodged for record, any deed that does not

comply with the provisions of this section.

Effective: July 14, 1992

History: Amended 1992 Ky. Acts ch. 263, sec. 8, effective July 14, 1992. -- Created

1990 Ky. Acts ch. 411, sec. 4, effective July 13, 1990.

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SWEAR OR AFFIRM  - OATH OR AFFIRMATION?

In Kentucky a person does not have to “swear” instead they may “affirm”.

The purpose of this procedure is merely to have the person acknowledge they understand the gravity of verifying their statement and by doing so submit themselves to punishment for perjury if they have made a false statement.

Carrier v. Commonwealth, No. 2002-SC-0509-DG (Ky. 06/17/2004)

“An affidavit is a written statement of fact under oath sworn to or affirmed by the person making it before some person who has authority under the law to administer oaths and officially certified by the officer under his or her seal of office. Id. §3. An affidavit implies the taking of an oath as to the truth of its contents. Bd. of Elections, supra.”

“An oath or affirmation is a subscription to the truth of that to which it is made. An affirmation is a substitute for an oath, except that it does not invoke the Deity, where there is an expression of scruples against taking an oath. 58 Am.Jur.2d Oath and Affirmation §2 (2002). "To make a valid oath or affirmation, there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and the intention to administer it on the other; mere intention, not accompanied by an unambiguous act, is insufficient." Bd. of Elections v. Bd. Of Educ., Ky. App., 635 S.W.2d 324, 327 (1982) (citations omitted). In order to have a valid statement under oath, the attention of the person to be sworn must be called to the fact that his or her statement is not a mere assertion, but must be sworn to, and he or she must do some corporal act in recognition of this. 58 Am.Jur.2d., supra, at §16.

An affidavit is a written statement of fact under oath sworn to or affirmed by the person making it before some person who has authority under the law to administer oaths and officially certified by the officer under his or her seal of office. Id. §3. An affidavit implies the taking of an oath as to the truth of its contents. Bd. of Elections, supra.

Here, although the county attorney filed a "Verified Motion for Records," the Court of Appeals construed it as the equivalent of an affidavit for a search warrant. However, contrary to the requirements of RCr 13.10, there is no indication that the motion was "sworn to before an officer authorized to administer oaths." This "affidavit" contains only bare allegations made by the county attorney and a certification by the detective. Notably, neither signature was even notarized. As such, the motion clearly fails to meet the procedural requirements of RCr 13.10 for an affidavit supporting a search warrant. The Constitutional demand of an oath or affirmation requires more than a mere verification of a police officer.

We note that in Spradling v. Hutchinson, 253 S.E.2d 371 (W.Va. 1979), the West Virginia Supreme Court of Appeals held that there was no significant distinction between an "affirmation" and a "certification" since both are subscriptions to the truth.”

In the United States Constitution, it was stated:

FOURTH AMENDMENT: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing ...

We believe this shows that our founding fathers recognized that some person's religious beliefs forbade them to "swear" and they have always been allowed to "affirm".   There simply is no law in Kentucky that mandates a preference for one other the other.  Both are legally binding and effective.

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