Effective November 1, 2023, the Oklahoma Legislature amended 60 Okla. Stat. §121 to require that any “deed” that is recorded with the county clerk must include an affidavit as an exhibit that is executed by the person, entity, or trust coming into title (i.e., the “Grantee” or “Buyer”) attesting that the person, entity, or trust is taking title in compliance with state laws on foreign ownership of property.
60 O.S. 2021, Section 121, is amended to read as follows:
Section 121. A. No alien or any person who is not a citizen of the United States shall acquire title to or own land in the State of Oklahoma this state either directly or indirectly through a business entity or trust, except as hereinafter provided, but he or she shall have and enjoy in the State of Oklahoma this state such rights as to personal property as are, or shall be accorded a citizen of the United States under the laws of the nation to which such alien belongs, or by the treaties of such nation with the United States, except as the same may be affected by the provisions of this act Section 121 et seq. of this title or the Constitution of this state. Provided, however, the requirements of this subsection shall not apply to a business entity that is engaged in regulated interstate commerce in accordance with federal law.
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. The Attorney General shall promulgate a separate affidavit form for individuals and for business entities or trusts to comply with the requirements of this section, with the exception of those deeds which the Attorney General deems necessary when promulgating the affidavit form.
So now every deed must be accompanied by the required Affidavit. Fortunately, the Attorney General created the required Affidavit Forms. The forms are available at every county clerk’s office and whoever is responsible for recording the deed needs to ensure that he has first obtained the properly executed and notarized original Affidavit in order for the county clerk to record their deed. Title companies will likely provide the Affidavit at closing for execution, but family quit claim deed transactions must also include the Affidavit. The person signing the Affidavit attests to the following:
- 18+ years old
- In the case of an individual, that the affiant is either a U.S. Citizen or an alien who is or may become a bona fide resident of Oklahoma
- In the case of an entity, that the affiant is an officer or trustee of the entity
- In the case of a business entity, that its direct and indirect owners are U.S. Citizens or bona fide residents of Oklahoma
- In the case of a trust, that its trustees and direct and contingent beneficiaries are U.S. Citizens or bona fide residents of Oklahoma
- Has personal knowledge
- Acknowledge the law on foreign ownership of property
- Acknowledge compliance with the general ban on using prohibited funding sources under 60 O.S. §121 or any other state or federal law.
Each person (or entity) going into title as a grantee must sign a separate affidavit. Thus, the deed may have to have attached to it multiple Affidavits. There is no statutory or judicially determined definition of a bona fide resident in Oklahoma. In a general sense, a bona fide resident is equated with a person’s honest intent to make a place one’s residence or domicile (think the standard for establishing “homestead”). Under the Constitution and Statute, a person does not have to be a resident of Oklahoma at the time of closing of a real estate transaction to purchase property. In other words, persons who may become bona fide residents may purchase real property.
The Oklahoma Supreme Court ruled that a corporation formed by an alien and “domesticated” in Oklahoma by registering with the Secretary of State was determined to be a “bona fide resident.” State ex rel. Cartwright v. Hillcrest Investments, Ltd., 1981 OK 27, 630 P.2d 1263 (1981). It appears that the same concept would apply to LLC’s and partnerships, but there is no case law or statute on point.
Under the new law, “deed” means every “deed.” That includes every conveyance of real property in every form regardless of the type of transaction, whether for consideration or not. This includes a Transfer-on-Death Deed, Sheriff’s Deed, Quit Claim Deed, Dedication Deed, “Correction” Deed, and every conveyance of real property, regardless of the type of interest acquired, whether vested or contingent. Some county clerks may also require Affidavits for other types of “conveyances”, such as Probate Decrees, Divorce Decrees, Affidavits to Terminate Joint Tenancy, etc. If a buyer declines to sign the Affidavit the deed will not be recorded by the county clerk.