Florida Seller Closing Affidavits: No-Lien, Gap, Possession, and FIRPTA, and Why Canadian Sellers Cannot Sign One of Them

Section 01What an affidavit is in this context

An affidavit, in the Florida real estate closing context, is a written statement of fact sworn before a notary public, in which the seller affirms the truth of specific declarations under penalty of perjury. The closing agent relies on the affidavits to complete the closing without holding back funds for risks the affidavits address. The title insurer relies on the affidavits to issue the owner's policy without certain standard exceptions (the "gap" exception, the "rights of parties in possession" exception, and others) that would otherwise narrow the buyer's coverage.

In structural terms, the affidavits are a substitute for what would otherwise be a longer pre-closing investigation by the title insurer. Rather than verify, for example, that no contractor has performed unpaid work in the past 90 days, the title insurer takes the seller's sworn statement and relies on it. If the statement turns out to be false, the title insurer's policy still covers the buyer, and the title insurer then has a claim back against the seller.

Section 02The No-Lien Affidavit

The No-Lien Affidavit (sometimes called the Owner's Affidavit or the Title Affidavit) is the longest and most consequential of the four. It addresses several categories of unrecorded risk that the title search cannot detect.

The seller affirms that no work, services, or labor has been performed on the property in the period (typically 90 or 120 days) preceding closing for which payment has not been made or is not in dispute, with the result that no construction lien could be filed against the property after closing. The seller affirms that no unrecorded easements, contracts for sale, or other agreements affect the property. The seller affirms that taxes and assessments are current or will be paid at closing.

For a Canadian seller, the operational point is to think carefully about any work done on the property in the months before closing. A new roof, HVAC repair, painting, landscaping, pool resurfacing: each of these can produce a construction lien if not paid. The seller's affirmation that all such work is paid up should be true on the date of closing.

Section 03The Gap Affidavit

The "gap" is the period between the effective date of the title commitment (when the title insurer's records search was last updated) and the moment the deed is recorded at the county clerk of court (sometimes minutes after closing, sometimes hours, sometimes a day or two depending on county and time of day). During the gap, in theory, a new lien could be recorded against the property by a third party, and the title commitment would not catch it.

The Gap Affidavit affirms that during the gap period the seller has not granted any new liens, mortgages, or other encumbrances on the property, has not entered into any new contracts that affect the property, and has no knowledge of any new claims or adverse matters.

The Gap Affidavit is operationally a low-risk affidavit for a Canadian seller because the gap period is short and the seller's behavior during it is normally consistent (no new transactions are being initiated). The only practical concern is to avoid signing other documents (a new mortgage, a new lien, a settlement of a pending lawsuit) during the gap.

Section 04The Possession Affidavit

The Possession Affidavit addresses what is called, in title insurance vocabulary, "rights of parties in possession." A standard owner's policy excepts coverage for the rights of any persons in possession of the property who are not shown by the public records. The Possession Affidavit allows the title insurer to delete that exception.

The seller affirms either that they are in sole possession of the property (no tenants, no licensees, no permissive occupants, no adverse possessors) or describes any other persons in possession with specificity (name, capacity, scope of occupancy, lease end date if applicable).

For a Canadian seller of a vacation property used personally and not rented out, the affirmation is straightforward. For a Canadian seller of a rental property, the affidavit must accurately describe the tenants, their leases, and any rights they have. A seller who fails to disclose a lease that survives closing (because the lease term extends past closing or because the lease has automatic renewal provisions) creates a coverage problem and a potential post-closing claim.

Section 05The FIRPTA Non-Foreign Affidavit

This is the affidavit that Canadian sellers cannot sign.

Under the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA), codified primarily at IRC §1445, a buyer of a US real property interest from a foreign person is required to withhold 15 percent of the gross sale price (10 percent in some cases, 0 percent in others, depending on statutory exceptions) and remit it to the IRS. The withholding is the buyer's mechanism for ensuring the foreign seller pays US capital gains tax on the sale.

The buyer can be relieved of the withholding obligation if the seller delivers a Non-Foreign Affidavit under IRC §1445(b)(2): a sworn statement that the seller is not a foreign person, signed under penalty of perjury, with the seller's US TIN. A US citizen or US resident (green card holder, or someone meeting the substantial presence test under IRC §7701) can sign this affidavit truthfully. A Canadian seller who is not a US citizen, green card holder, or US resident under the substantial presence test cannot.

For a Canadian seller, the consequence is direct and binary. The Non-Foreign Affidavit is set aside (not signed). FIRPTA withholding applies. The buyer (or the closing agent acting on the buyer's behalf) withholds the applicable percentage of the gross sale price at closing and remits it to the IRS via Forms 8288 and 8288-A within 20 days of closing.

The withholding rate depends on the transaction. For most sales by a Canadian seller, the rate is 15 percent. For sales where the buyer is purchasing the property for use as a personal residence and the price is at or below 300,000 USD, the rate is 0 percent. For sales where the buyer is purchasing for use as a personal residence and the price is between 300,000 and 1,000,000 USD, the rate is 10 percent. The personal-residence exception requires a buyer affidavit (a different sworn statement, this one signed by the buyer) attesting to personal-use intent.

A Canadian seller who anticipates that the FIRPTA withholding will exceed the actual US tax liability on the sale (because of capital gains computation, principal residence treatment, treaty positions, or other factors) can apply for a withholding certificate using Form 8288-B before closing. If the IRS issues the certificate before closing, the buyer withholds at the reduced rate. If after closing, the seller files for refund.

The FIRPTA mechanism is treated in detail in the dedicated FIRPTA reference page on this site, in the 300,000 USD personal-residence exception page, and in the Form 8288-B early-refund page. The closing affidavit angle is the operational handoff: at the closing table, the Canadian seller does not sign the Non-Foreign Affidavit, and the Florida closing agent treats the absence of that affidavit as the trigger for FIRPTA withholding.

Section 06How the four affidavits fit together

In practice, the four affidavits are presented to the seller in a closing-document binder in two parts. The first three (No-Lien, Gap, Possession) are typically combined into a single multi-section document, with each section addressing one of the three risks. This combined document goes by various names depending on the closing agent's preference: Owner's Affidavit, Seller's Affidavit, Title Affidavit, or No-Lien, Gap and Possession Affidavit. The seller signs once at the bottom and notarizes once.

The fourth affidavit (FIRPTA) is presented separately because it is a federal tax-law document with a different legal purpose, a different recipient (the buyer rather than the title insurer), and a different consequence if signed falsely. For a Canadian seller, this document is set aside, the closing agent records that no Non-Foreign Affidavit was provided, and FIRPTA withholding is triggered on the closing settlement statement.

Section 07The Canada side: how Quebec handles the same risks

For a Quebec seller, the functional analogues to the Florida affidavits are partly absorbed by the notarial regime and partly handled by separate sworn declarations. The table below uses Quebec as the reference comparator and acknowledges that province-by-province comparisons for Ontario, British Columbia, and Alberta are forthcoming.

Section 08Worked example: Quebec seller closing on a Naples condo, March 2026

A Quebec resident sells a Naples condominium for USD 425,000 in March 2026. The closing is in person, with the seller flown to Florida for two days. The closing agent prepares four affidavits. Here is what happens at the signing table.

No-Lien Affidavit. The seller had a hurricane-shutter installation completed in October 2025 (USD 18,200 paid, contractor receipt on file) and a roof inspection completed in January 2026 (USD 450 paid, no work). The closing agent confirms both vendors are paid in full. The seller signs.

Gap Affidavit. The title commitment was issued February 28, 2026. Closing date is March 14, 2026 — a 14-day gap. The seller affirms that no liens, judgments, or encumbrances were recorded against the property between February 28 and March 14. The seller has not signed any new contracts during this window. Affidavit signed.

Possession Affidavit. The condo was rented on Airbnb in February (3 short stays). No rental booked for the closing-week timeframe. The seller affirms that no third party has any right of possession on the closing date. The Airbnb history is documented and disclosed to the closing agent for record. Affidavit signed.

FIRPTA Non-Foreign Affidavit. The seller is a Quebec resident — a foreign person under IRC § 1445. The seller does NOT sign this affidavit. Instead, the closing agent prepares Form 8288 to remit the 15 % FIRPTA withholding (USD 63,750) to the IRS within 20 days of closing.

The seller leaves Naples with three signed affidavits, the FIRPTA withholding remitted, and a check for USD 361,250 net (sale price minus FIRPTA, title insurance, doc stamps, prorations, and commission). The Form 8288-A copy follows by mail within 30 days, which the seller will need for the 1040-NR filing the following spring.

Section 09Common mistakes Canadian sellers make on closing affidavits

The errors below recur on Canadian-seller Florida transactions and each carries a concrete cost or post-closing exposure.

1. Signing the FIRPTA Non-Foreign Affidavit by mistake. A Canadian seller who signs without reading sees the words "I am not a foreign person" and may sign on the assumption that "foreign" refers to citizenship, when in tax law it refers to residency. The closing agent should catch this, but the seller's own attention is the primary safeguard.
2. Treating the No-Lien Affidavit as a formality. The affidavit affirms that no construction lien risk exists. A seller who had a roof replaced, an HVAC unit installed, or a pool resurfaced in the months before closing should confirm with the closing agent that all contractor invoices are paid before signing. Otherwise the affidavit may be false.
3. Failing to disclose tenants on the Possession Affidavit. A Canadian who rented their condo on Airbnb in the weeks before closing, especially if a guest occupied during the closing week, should disclose this to the closing agent. Even informal short-term rentals are "rights of parties in possession" for purposes of the affidavit.
4. Not addressing FIRPTA before closing. If FIRPTA withholding is going to apply (which it does for almost all Canadian sellers), the time to apply for Form 8288-B is six to eight weeks before closing, not the day of. A Canadian seller who waits until closing has lost the opportunity to reduce withholding through the certificate process.
5. Presuming the buyer can sign a Buyer's Personal Residence Affidavit on the seller's behalf. The 300,000 USD or 1,000,000 USD personal-residence exception requires a buyer affidavit signed by the buyer attesting to personal-residence intent. The seller cannot drive that affidavit. If the buyer is unwilling to sign (because the buyer is purchasing as an investment or in the name of an LLC), the exception is unavailable.
6. Confusing perjury exposure on these affidavits with the lower-stakes nature of typical closing paperwork. The affidavits are sworn statements before a notary. False statements can produce both criminal exposure and civil claims by the title insurer or the buyer. A Canadian seller who is uncertain about any statement in any affidavit should resolve the uncertainty before signing rather than after.

Section 10Action checklist for a Canadian seller

1. Six to eight weeks before closing: confirm with a cross-border tax professional whether FIRPTA withholding will apply, at what rate, and whether a Form 8288-B application is appropriate.
2. Four to six weeks before closing: if applicable, file Form 8288-B with all supporting documentation to apply for a reduced withholding certificate.
3. Two weeks before closing: review with the closing agent which affidavits will be presented at closing and obtain blank copies for review.
4. One week before closing: confirm the No-Lien Affidavit declarations are accurate. Verify all contractor invoices are paid. Identify any work in the past 90 to 120 days and confirm payment status.
5. One week before closing: review the Possession Affidavit declarations. Identify any tenants, licensees, or other occupants and prepare an accurate description.
6. At closing: do not sign the FIRPTA Non-Foreign Affidavit. Confirm the closing disclosure shows FIRPTA withholding (or the absence of withholding under an exception) consistent with what was prepared.
7. After closing: retain copies of all four affidavits and the FIRPTA documentation (Forms 8288 and 8288-A as filed by the buyer with the IRS, Form 8288-B if applicable, the buyer's Personal Residence Affidavit if applicable). Keep these with the closing file for at least the period of any potential US tax-return amendment.

Section 11FAQ

What if a Canadian seller signs the FIRPTA Non-Foreign Affidavit by mistake? The affidavit is false. The buyer's withholding obligation has not been satisfied (because the affidavit a buyer relies on must be true). The IRS can collect the withholding from the buyer with interest and penalties, and may pursue civil and criminal claims against the seller for the false affidavit. A Canadian seller who realizes a mistake should immediately notify the closing agent and the buyer.

Can a Canadian seller use a Quebec notary or a Canadian lawyer to notarize the Florida affidavits? The affidavits must be notarized by a notary recognized for the Florida transaction. A Florida notary or a Florida-licensed attorney acting as notary is the standard. For a remote-signing seller, a Canadian notary's notarization may be acceptable if accompanied by an apostille under the Hague Convention (Canada became a signatory in January 2024). Confirm with the closing agent in advance.

Are the affidavits the same in every Florida county? Substantially yes. The closing agent's template varies but the substantive declarations are standard across Florida title industry practice. Closing agents in Broward, Collier, Miami-Dade, and Sarasota counties (the four buyer-pays-title-insurance counties) use the same affidavits as agents elsewhere.

Does the Possession Affidavit affect a Canadian seller who has a long-term tenant in place? Yes. The seller must disclose the tenancy. The buyer takes the property subject to the lease (unless the lease is terminated and the tenant vacates before closing). The title commitment will reflect the tenancy as an exception, and the policy will not insure against the tenant's rights.

If FIRPTA withholding applies, does the Canadian seller still sign the No-Lien, Gap, and Possession affidavits? Yes. FIRPTA addresses the buyer's federal tax-withholding obligation. The other three affidavits address the title insurer's coverage on the buyer's owner's policy and are independent of FIRPTA.

Can a seller's attorney sign the affidavits on the seller's behalf? Generally no. The affidavits are personal sworn statements. A power of attorney to sign closing documents may not extend to sworn affidavits in the seller's voice; consult the closing agent and the Florida-licensed attorney drafting the power of attorney before closing.