Affidavit of Memorandum: What It Is, How to File One & How to Remove It (2026)

Written by

Alex Martinez, Founder & CEO, Real Estate Skills. Has wholesaled and flipped houses for over 14 years, been part of 1,000+ real estate transactions, and personally acquired 55+ residential investment properties. Has trained 6,000+ investors nationwide.

RZ

Reviewed by

Ryan Zomorodi, Co-Founder & COO, Real Estate Skills. Reviewed the recording process, state rules, and removal guidance in this article before publication.

✓ Updated September 2026 ✓ Fact-Checked 📄 Free Contract Templates Inside Watch on YouTube

Publication history: Originally published October 6, 2025. Updated September 2026 with corrected Texas HB 4063 guidance, a guide to the different memorandum documents, a step-by-step filing process, a sample document layout, and new guidance for property owners removing a memorandum. Recording and state-rule content reviewed by Ryan Zomorodi, Co-Founder & COO of Real Estate Skills.

Two kinds of people search for this. The first just signed a purchase contract and has a bad feeling the seller is shopping it to someone else. The second pulled a title report and found a document with a stranger's name on it, sitting on their own house. Different fears, same question: what is this thing, and what can it actually do?

The honest answer is less than most wholesalers think, and more than most sellers fear. A recorded memorandum doesn't give you the property. It tells the public you have a contract, and that notice is what makes a second sale nearly impossible to close. On a real deal, that's legitimate protection. Used as leverage on a deal you were never going to close, it's how investors end up paying the other side's legal bills. It's also why Texas rewrote its rules in 2025.

This guide covers both sides. You'll learn what the document is and what your county calls it, how recording protects you (with real numbers), when to file one and when not to, how to file, and what the document looks like. You'll also get the state rules that changed and how to get one removed. One more thing up front: a memorandum is only as strong as the contract behind it. If you don't have a solid purchase agreement yet, start with our free wholesale real estate contract templates.

What Is An Affidavit Of Memorandum?

You won't find a form called “affidavit of memorandum” at the county recorder's office. The phrase is shorthand used by real estate investors, and it mashes two real documents together. Knowing which one you're dealing with tells you what it can and can't do.

Start with the word everything else depends on. Recording means filing a document with the county office that keeps property records. Depending on your state, that office is called the county recorder, the county clerk, or the register of deeds. Once a document is recorded, it becomes part of the property's public history, and every title search from then on will find it.

An affidavit is a written statement of facts that you swear is true, signed in front of a notary or another official authorized to take oaths. The person signing is called the affiant. You're putting your name, under oath, behind every fact in it, so every fact had better be right.

A memorandum of contract is a short summary of your real estate purchase agreement, written so it can be recorded without putting the whole contract on public display. It names the buyer and seller, identifies the property, and points to the agreement. Instead of swearing to it, the signers acknowledge it before a notary, meaning the notary confirms who signed.

The Affidavit and Memorandum of Agreement combines the two, and it's the version most form sites sell. The buyer swears that on a specific date they signed an agreement with the named seller to buy the property described in an attached exhibit. It also states the expected closing date and who to contact for more information. That's usually the entire document: one page, plus the property description.

There's one term people lump in with memoranda that doesn't belong: lis pendens. It's Latin for “suit pending,” and it's a recorded notice that a lawsuit affecting the property's title has been filed. You can't record one just because you have a contract. It comes later, if the seller backs out and you sue for specific performance, which is a court order forcing the seller to complete the sale. In short, a memorandum is recorded before any dispute; a lis pendens is recorded after one reaches court.

Which document should you use? That depends on your contract and your state, and the state rules section below walks through them. My view: if you can get the seller to sign a two-party memorandum when you sign the purchase agreement, do it. Nobody can later claim they didn't know about it, and in North Carolina, for example, a memorandum only works as notice when every owner signs. The buyer-only version is the one Texas lawmakers targeted, which is why Texas now requires filers to mail it to the owner.

How Recording One Actually Protects Your Deal

Step 1: The Contract Gives You An Interest In The Property

The moment you and the seller sign a binding purchase agreement, most states treat you as holding equitable title. That's a recognized interest in the property, even though the seller still holds legal title, meaning actual ownership, until closing. The legal name for this is equitable conversion. Ryan puts it in plain terms in his contract walkthrough: the purchase agreement is what gives you control of the deal. Everything a memorandum does starts there.

Step 2: Nobody Else Can See That Interest

Your contract sits in your email and the seller's kitchen drawer. The county doesn't know it exists. That's the gap sellers exploit when they get a better offer.

Here's why it matters. The law protects a bona fide purchaser: someone who pays for a property with no reason to suspect a problem with the seller's right to sell it. If a second buyer comes along, pays, and truly didn't know about your contract, they can often keep the property. Your claim then shrinks to suing the seller for money.

Step 3: Recording Makes Your Interest Impossible To Miss

Every state has a recording law. The details differ from state to state, but the core rule is the same everywhere. A properly recorded document gives constructive notice, meaning the law treats every later buyer and lender as knowing what's in the public record, whether they actually looked or not. Someone who's charged with notice of your contract can't claim bona fide purchaser status, so anyone who buys after you record takes the property subject to your claim.

In practice, it's rarely a court that stops the second sale. It's the title company. Their search turns up your memorandum, they list it as something that has to be cleared, and they typically won't insure the closing until it is. No title insurance usually means no lender and no closing.

Outcomes vary by state and by the facts of the deal. This illustrates the general mechanism and isn't a promise of how any specific dispute would go.

What Recording Does Not Do

• It doesn't stop the seller from signing a deed. Nothing physically prevents that. Recording just makes the deed far less valuable to whoever receives it.
• It doesn't strengthen a weak contract. A memorandum can only give notice of the contract you actually have. If a co-owner never signed, recording it won't fix that. It just puts the problem on public record under your name.
• It doesn't work if it isn't done properly. A document that isn't executed and notarized the way your state requires may not count as notice at all. That's the real reason the notary step matters. It isn't what makes the contract binding; it's what makes the recording count.
• It doesn't win a dispute for you. If the seller refuses to close, you still have to enforce your contract. Recording protects your position while you do.

It cuts both ways. The same notice that blocks a second buyer also sits on the seller's title if your deal falls apart. If you don't close, you have to release it, and a filer who drags their feet on a dead deal is exactly who state lawmakers are now targeting. That's why the next section starts with the question most wholesalers skip: should you record one at all?

When To Record One, And When Not To

This section explains general practices, not legal advice. Recording rules and the consequences of a wrongful filing vary by state. Talk to a local real estate attorney before you record anything against a property.

Most deals never need a memorandum. A clean contract with a motivated seller and a 14-day close usually closes without one. Recording is a tool for specific situations, and using it when it isn't needed can do real damage. Run every deal through these gates first.

Gate 1: Is The Contract Real And Complete?

Every owner on title has to have signed. Husband and wife, business partners, all the heirs on an inherited house. Ryan's rule in his contract walkthrough is to confirm ownership with a title company before you even write the offer, because a contract missing one owner's signature can be thrown out. Record a memorandum against that contract, and you've publicly claimed an interest you may not actually have.

Gate 2: Could You Actually Close?

This is the one that separates legitimate protection from trouble. Ryan draws the line bluntly in his video on wholesaling legally: if you could never close, you aren't a real buyer. That means you need real funds, a lender, or a committed partner. It matters because slander-of-title claims usually turn on good faith. A filer who honestly believed they had a valid claim is in a very different position from one who recorded a claim they knew was empty.

Gate 3: Does Your Contract Allow It?

Read your purchase agreement before you do anything. Plenty of contracts, especially commercial ones, include a “no recording” clause, and some go further: record anything, and you're in default. Default can mean losing your earnest money and the deal, so the filing that was meant to protect you ends up handing the seller a way out. Other contracts expressly allow the buyer to record a memorandum without the seller's signature. Know which one you signed.

Gate 4: Is There A Real Risk?

Record when something concrete tells you the seller might sell around you:

• A long closing timeline.
• A seller who's openly still taking offers.
• Family members or an agent pushing for more money.
• A deal large enough that losing it would really hurt.

A vague feeling isn't enough. Neither is recording by habit on every contract.

If You Pass All Four, Do It The Right Way

• Tell the seller up front. Ryan's standard is to spell out in the seller contract what you can do as the buyer and that you don't represent them, because misunderstandings are where lawsuits start. Apply the same standard here. If your contract lets you record, say so when they sign. A seller who first hears about it from a title company is a seller calling a lawyer.
• Have the release ready before you record. Get a signed release of the memorandum (or the notice of termination your contract calls for) held by your title company. If the deal dies, it gets recorded that day.
• Follow your state's filing rules exactly. In Texas, that includes certified mailing to the owner. The state rules section below covers it.

When Recording Is The Wrong Move

• The contract is dead. If you terminated during your inspection period, or the contract expired, whatever you'd be recording is gone. Recording now, or leaving an old memorandum on title, is exactly the kind of stale filing Texas title insurers complained about.
• You're using it as a toll booth. Texas lawmakers passed HB 4063 largely because of filers who recorded memoranda and then demanded payment, unrelated to the contract's terms, just to go away. Title insurers call this “greenmail.” The line is simple. Negotiating a release on a real contract you could close is a legitimate business outcome. Recording against a deal you can't close, so the seller has to pay you to leave, is the abuse that gets filers sued and gets laws passed.
• The relationship is the deal. A seller who trusts you will close with you. A seller who finds a document recorded against their house without warning may stop trusting you on the spot. Sometimes the better protection is a phone call, not a filing.

How To Prepare And File An Affidavit Of Memorandum

These steps describe how filing generally works and are educational, not legal advice. Recording requirements, forms, and fees vary by state and county, so confirm the specifics with your county recorder and a local real estate attorney before you file.

If your deal passed every gate in the last section, filing is mostly paperwork. The mistakes happen in the details, so here's the process in order.

Step 1: Confirm Your Contract And Your State's Rules

Reread your purchase agreement for a recording clause. It may permit recording, prohibit it, or require the seller's signature. Then check your state's requirements. Some states, like North Carolina, require every owner to sign a memorandum for it to work as notice. Others, like Texas, add mailing rules for buyer-only filings.

Step 2: Get The Right Form

Use a form drafted or reviewed by a local real estate attorney, or ask your title company what they'll accept. Also check the county recorder's website. Many counties publish formatting rules for recorded documents, and a form that ignores them can be rejected at the counter.

Step 3: Fill It In Precisely

Include the parties' names exactly as they appear on the contract, the legal description of the property, the contract date, the expected closing date or the contract's expiration date, and your contact and mailing address. The price and terms usually stay off. Here's what to watch on each:

• The parties' names: for the seller, match the names on their deed.
• The legal description: this is the official boundary description from the deed, which is different from the street address. Your title company can pull it from the seller's vesting deed (the deed that put title in their name). Add the APN (assessor's parcel number, the property's tax ID) as well.
• The contract date: the date the last party signed.
• The closing or expiration date: North Carolina requires the expiration date.
• Your contact and mailing address: Texas requires the filer's mailing address for buyer-only memoranda.

Leaving the price off is intentional. The memorandum proves your contract exists without publishing your deal.

Step 4: Sign In Front Of A Notary

An affidavit is sworn: you take an oath before the notary that its contents are true. A memorandum is acknowledged: the notary verifies who signed. Either way, the notarization is what makes the document recordable and lets it count as notice. A document that isn't properly executed and acknowledged may not give notice to anyone.

Step 5: Record It With The County

Take or send the signed original to the county recorder, clerk, or register of deeds where the property is located. Pay the recording fee, which varies by county and by page count. Keep the recording receipt, which shows the document number or book-and-page reference. Many counties also accept electronic recording through approved services.

Step 6: Send Any Required Notices

In Texas, a buyer-only memorandum on residential property requires mailing the owner a copy and a notice letter by certified or registered mail, and recording a certificate of mailing, no later than the day you file. Everywhere else, follow your state's rules. Even where it isn't required, send the seller a copy. In Texas, the letter goes to both the property address and any owner mailing address on record, with return receipt requested.

Step 7: Confirm It's Recorded, And Calendar The Exit

Search the county's records, or ask your title company, to confirm the memorandum shows up. Then put two dates on your calendar: your closing date, and the day you'll record the release if the deal doesn't close.

This is a simplified illustration. Requirements and timing depend on your county and your specific situation.

FREE Wholesale Real Estate Contracts (Walkthrough)!

A memorandum is only as strong as the contract behind it. In this walkthrough, Ryan Zomorodi covers how to fill out the Purchase & Sale Agreement correctly, including getting every owner's signature.

 

What An Affidavit Of Memorandum Looks Like (Sample Layout)

Here's the skeleton of a combined Affidavit and Memorandum of Agreement, the version most investors mean when they say “affidavit of memorandum.” Every bracketed field is something you fill in. The notes after the sample explain which parts change depending on your state and your contract.

This is a simplified educational sample, not a legal document. Have a licensed real estate attorney in your state prepare or review anything you record.

What's Missing On Purpose

There's no purchase price, earnest money, or inspection period. The memorandum only needs to prove the contract exists and point to it. Anyone with a legitimate reason to see the terms can ask you, which is what line 6 is for.

What Changes By State And Contract

• Line 10: it turns the affidavit into a two-party memorandum. It's required in states like North Carolina, where every owner has to sign for the memorandum to work as notice. It's the stronger version everywhere else, because nobody can say they didn't know.
• In Texas: a buyer-only memorandum on residential property also needs a certificate of mailing recorded with it. Texas law sets out that form's language, and your document has to substantially follow it. Don't improvise it.
• Line 5: if your contract has an expiration date, use it. A memorandum with a clear end date is less likely to be treated as a stale claim later.

What Makes One Fail

• The seller's name doesn't match the deed.
• A street address is used instead of the legal description.
• An owner who had to sign didn't.
• The notary block is missing or incomplete.

Any of these can mean the recording doesn't give notice at all, or that the county won't accept it in the first place.

Your Memorandum Is Only As Strong As Your Contract

Every memorandum points back to a purchase agreement, and that agreement is what a title company, a seller's attorney, or a judge will actually read. Download our free Wholesale Real Estate Contracts, the same Purchase & Sale Agreement and Assignment Contract we use in our own deals, so the contract behind anything you record is complete, signed by every owner, and ready for closing.

State Rules: Texas HB 4063 And Other Examples

This section summarizes state rules as of 2026 for educational purposes. It is not legal advice. Laws change, and the details matter, so confirm current requirements with a real estate attorney licensed in the property's state.

There's no national memorandum law. Every state has its own recording statute, its own rules about what a recordable document needs, and its own way for owners to challenge a bad filing. A few states have written rules aimed squarely at memoranda. Here are three that show the range.

Texas: HB 4063 (Property Code § 12.020)

Texas passed this law after the state's title industry reported a pattern, described in the Texas House committee's analysis of HB 4063. Sellers often didn't know a memorandum had been filed against their home, the underlying deals were sometimes stale, and some filers were demanding payment unrelated to the contract just to release them.

What It Covers

The law applies to a unilateral memorandum of contract, meaning one signed only by someone who isn't an owner of the property. It must claim a contract to buy the property, an option to buy it, or a right of first refusal or a right to match an offer. It only applies to residential property: a single-family house, duplex, triplex, fourplex, or condo unit. It applies to memoranda filed on or after September 1, 2025. A memorandum the owner also signed isn't a unilateral memorandum, so these rules don't apply to it.

What The Filer Must Do

No later than the day of filing, the filer must:

• Give the county clerk their mailing address.
• Mail the owner a copy of the filed memorandum and a notice letter by registered or certified mail, return receipt requested, to both the property address and any owner mailing address on record.
• Record a certificate of mailing with the memorandum.

What Happens If The Filer Skips A Step

The memorandum doesn't give notice to later buyers or lenders, and the property can be sold or refinanced free of it. The filer's only remedy is a lawsuit for money. They can't use the memorandum to stop the sale.

What The Owner Can Do

Even when the filer followed every rule, the owner can file an affidavit for release stating the factual basis for releasing it (for example, that the contract was terminated), along with a certificate of mailing. They mail it to the filer the same way. The filer then has 45 days from the day the owner's certificate of mailing is recorded to file a contradicting affidavit saying the owner's affidavit is untrue or explaining why the memorandum is still valid. If the filer doesn't respond, buyers and lenders can rely on the release, and the filer is again limited to suing for money.

Dates are illustrative. Confirm deadlines with a Texas attorney or title company for any actual filing.

North Carolina: Every Owner Signs

North Carolina's memorandum statute spells out what a memorandum of a contract to convey real estate must include: notarized signatures of each record title holder and each buyer, a property description, the contract's expiration date, and a reference identifying the agreement. It works as notice when every record owner and every other party has signed and acknowledged it. A buyer-only filing doesn't meet that standard. If you're buying in North Carolina, plan on getting the seller's signature on the memorandum when you sign the purchase agreement.

Colorado: Spurious Documents Cost The Filer

Colorado gives owners a fast track against bad filings. A spurious document is one that's forged or groundless, contains a material misstatement or false claim, or is otherwise patently invalid. Under Colorado's spurious-document statute, an owner can petition the district court for an order requiring the filer to show why it shouldn't be declared invalid. If the court finds it spurious, it releases the document and orders the filer to pay the owner's costs, including reasonable attorney fees.

The risk runs both ways. If the court finds the document isn't spurious, the owner pays the filer's costs and fees. Separately, Colorado makes anyone who willfully refuses to release a groundless or invalid recorded document, after the owner asks, liable for damages and attorney fees. The lesson for filers: if your deal is dead and the owner asks you to release, release.

Everywhere Else

Assume the general rules from this guide apply until you confirm otherwise:

• Your recording has to meet your state's execution and notarization rules to count as notice.
• A false or groundless filing can expose you to a slander-of-title lawsuit.
• Owners can challenge an invalid recorded claim in court, often through a quiet title action, a lawsuit asking a judge to declare who holds clean title.

Separately, several states have added wholesaler disclosure and licensing rules in recent years. Those rules don't target memoranda directly, but they can affect how you contract in the first place.

Check Your State's Wholesaling Rules Before You Record Anything

Memorandum rules are only one piece of the legal picture. Many states have also added rules on how investors can contract, disclose, and assign deals. Download our free state-by-state guide to wholesaling laws, covering licensing laws, assignment rules, and disclosure requirements, then confirm the current details for your state with a local attorney.

How To Wholesale Real Estate Legally In ANY State (+FREE CONTRACTS)!

Ryan Zomorodi explains equitable interest, why recording matters, and how to plan a clean exit so a recorded interest doesn't leave the seller stuck with a clouded title.

 

Risks: Slander Of Title, Spurious Documents, And Contract Default

Every risk in this section traces back to one mistake: recording a claim you can't stand behind. If your deal passed the four gates in the when-to-record section, most of what follows is unlikely to touch you. If it didn't, this is where it catches up.

Slander Of Title

Slander of title is a lawsuit an owner can bring against someone who publishes a false statement that damages their title. Recording a document counts as publishing it. Courts in different states phrase the requirements differently, but the owner generally has to prove four things:

1. A false statement about the property's title. Recording a claim based on a contract that doesn't exist, was never fully signed, or has already ended can qualify. Courts have held that knowingly filing a document you know has no legal effect is a false statement.
2. Publication. The recorded document is in the public record, where title searchers find it.
3. Malice. This usually means you knew the claim was false or recorded it with reckless disregard for whether it was true. Some courts presume malice when the filing is false and causes damage, unless the filer shows a legitimate justification.
4. Special damages. The owner has to show a real financial loss the filing caused, typically a specific sale or refinance that fell through.

Good faith is the line that matters. A filer who honestly believed they had a valid contract, even one a court later rules against, is in a far better position than one who knew the deal was dead or never intended to close. That's why the first two gates, a complete contract and a real ability to close, come first.

This is a hypothetical to show how the elements fit together. Actual outcomes depend on the state, the facts, and the court.

Spurious-Document And Refusal-To-Release Statutes

Some states give owners faster tools than a full lawsuit. Colorado is the clearest example (see the state rules section):

• An owner can ask a court to declare a recorded document spurious. If the court agrees, it releases the document and orders the filer to pay the owner's costs and reasonable attorney fees.
• Refusing to release a groundless or invalid document after the owner asks can make the filer liable for damages and fees on its own.

Even a filer who started in good faith can create liability by holding on after the deal is over.

Contract Default

Some purchase agreements make recording a breach. If yours has a “no recording” clause, filing a memorandum can put you in default. That can let the seller cancel and keep your earnest money, which is the opposite of what you were trying to protect.

Losing The Protection Anyway

In Texas, a buyer-only memorandum that skips the mailing and certificate requirements doesn't bind later buyers or lenders, and the filer is limited to suing for money. You'd have taken on the risk of recording and gotten none of the protection.

None of this means a legitimate memorandum is dangerous. It means the filing inherits whatever is wrong with your deal. A complete contract, the real ability to close, a contract that permits recording, disclosure to the seller, and a release ready to go: that combination makes these risks very remote.

Alternatives To Recording A Memorandum

A memorandum is a response to a seller who might sell around you. Most of the time, the better move is making that less likely in the first place. These are the tools that do the most work.

1. Write The Seller's Default Remedies Into Your Contract

Your purchase agreement should say what happens if the seller backs out. Typically, that gives you a choice: enforce the contract through specific performance (a court order making the seller close), or cancel and get your earnest money back, ideally plus reimbursement of costs you've documented, like title fees or inspections. Many standard forms already include some version of this. Read yours, and have an attorney add it if it's missing.

One thing not to do: invent a big “penalty” for backing out. Courts generally refuse to enforce a clause designed to punish a breach. A fixed amount in a contract, called liquidated damages, holds up only when it's a reasonable estimate of losses that were hard to predict when you signed. A $25,000 penalty on a $150,000 deal looks like punishment, not compensation, and it can get thrown out entirely.

2. Shrink The Window

A seller can only shop your deal if they have time to. Ryan puts a deadline to accept on every offer, 24–48 hours, specifically so other parties don't get a chance to influence the seller. Pair that with a short closing timeline. Every week between signing and closing is another week for a better offer to show up.

3. Get Every Owner's Signature, And Confirm Ownership First

A contract missing a co-owner is the easiest one for a family member to blow up. Ryan's practice is to check with a title company who's actually on title before writing the offer. That single step prevents more “the seller backed out” situations than any recorded document.

4. If You Want Public Notice, Ask For It Up Front

If a deal is long-dated or high-stakes, ask the seller to sign a two-party memorandum along with the purchase agreement. It gives you the same public notice as a buyer-only filing, without the surprise. In North Carolina, it's the only version that works as notice anyway.

5. Use An Option Agreement For Longer Holds

If you need weeks or months, an option agreement gives you the exclusive right, but not the obligation, to buy within a set period, usually in exchange for an option fee. The terms are clearer than a stretched-out purchase contract. Options can be recorded too, and in Texas, a buyer-only memorandum of an option falls under the same HB 4063 rules.

6. Document Everything In Writing

Keep every text, email, signed addendum, and extension. If you ever have to enforce your contract, a clean paper trail is what shows a judge the deal was real and that you were ready to close.

Myth To Drop: “A Bigger Earnest Money Deposit Keeps The Seller Honest”

It doesn't. Your earnest money deposit is your money, held by a title or escrow company, and it protects the seller if you default. If the seller backs out, you generally get it back. A larger deposit can make your offer more attractive when the seller is deciding whether to accept, but it doesn't bind them any tighter once they've signed. Keep it to what the deal requires (Ryan's range is 1–3% of the purchase price), and put your protection into the contract terms instead.

If The Seller Has Already Backed Out

At this point, recording a memorandum is usually the wrong first move. Call a real estate attorney. They may start with a demand letter. If it comes to a lawsuit for specific performance, your attorney can record a lis pendens, the notice of pending litigation explained earlier in this guide, which puts later buyers on notice of the suit itself. Act quickly. Every day you wait is a day the seller could close with someone else.

How To Release Or Remove A Memorandum

This section is educational and not legal advice. The right removal path depends on your state and on whether the underlying contract is still valid. If a memorandum is holding up a sale or refinance, talk to a real estate attorney right away.

A recorded memorandum isn't a lien, and it isn't a debt. It's a notice. But title companies treat it like something that has to be cleared before they'll insure, so in practice it has to be dealt with before the property can close. And don't count on it disappearing on its own. Unless your state has a specific rule, it generally stays in the public record until a recorded release or a court order removes it, even after the contract has ended.

If You Recorded It: Release It The Day The Deal Ends

When To Release

Release it when the contract terminates, expires, or falls apart. When the deal closes, ask your title company how they want it handled at closing. Either way, a memorandum should never outlive the deal it was recorded for.

How To Release

Record a release (sometimes called a termination or release of memorandum) with the same county office. It should identify the original memorandum by its recording number or book-and-page reference, name the parties and the property, and be signed and notarized. Send the owner a copy. If you followed the when-to-record checklist and parked a signed release with your title company before recording, this is a one-day task.

Why Speed Matters

A dead filing you won't release is how a legitimate buyer turns into a defendant. In Colorado, refusing to release a groundless or invalid document after the owner asks can make you liable for damages and attorney fees. Anywhere, it's the kind of conduct that supports a slander-of-title claim.

If Someone Recorded One Against Your Property

Step 1: Get A Copy And Read It

Order it from the county recorder's website or office, or ask the title company that found it. Note who filed it, when, what contract it claims, and any closing or expiration date. In Texas, a buyer-only memorandum filed since September 1, 2025 should also have a certificate of mailing recorded with it.

Step 2: Figure Out Whether The Contract Is Real

This is the honest step, and it matters. If you signed a purchase agreement with this person and it's still in effect, the memorandum may be doing exactly what it's supposed to do. Trying to remove it could be a breach of your own contract. Talk to an attorney before you do anything else. If the contract was terminated, expired, was never fully signed, or never existed, keep going.

Step 3: Ask For A Voluntary Release, In Writing

Send the filer a letter by certified mail. State the facts (for example, that the contract terminated on a specific date) and ask them to record a release by a specific deadline. Many disputes end here. Keep a copy and the mailing receipt, because they matter if this goes further.

Step 4: Use Your State's Shortcut, If It Has One

• Texas: for a buyer-only memorandum on residential property filed on or after September 1, 2025, you can record an affidavit for release plus a certificate of mailing, then mail both to the filer. If they don't record a contradicting affidavit within 45 days of your certificate being recorded, buyers and lenders can rely on your release. If the filer skipped the required mailing when they recorded, the memorandum doesn't bind later buyers or lenders in the first place. The state rules section has the full timeline.
• Colorado: you can petition the district court to declare a groundless filing a spurious document. If the court agrees, it releases the document and orders the filer to pay your costs and attorney fees. If the court disagrees, you pay theirs, so be sure of your facts first.

Step 5: Go To Court If You Have To

Every state gives owners some way to remove an invalid claim from their title. The common one is a quiet title action, a lawsuit asking a judge to declare that the claim is invalid and that your title is clear. If the filing already cost you a sale, your attorney may also look at a slander-of-title claim (see the risks section).

This is an illustration. Timelines and outcomes vary by state and circumstance.

Affidavit Of Memorandum FAQs

Final Thoughts On Affidavits Of Memorandum

A memorandum doesn't make a deal. It protects one. Everything in this guide comes back to that.

If your contract is complete, you can genuinely close, your agreement allows it, and there's a real risk the seller will sell around you, recording a memorandum is legitimate, useful protection. Tell the seller, follow your state's filing rules exactly, and have the release ready before you record. If any of those pieces is missing, the filing inherits the problem, and it's your name on the public record.

If you're on the other side of it, with a stranger's memorandum sitting on your title, don't panic and don't pay anyone to go away. Find out whether the contract is real, ask for a release in writing, and use your state's process if they won't cooperate.

What To Do Next

• If you're a buyer or wholesaler: pull out your current purchase agreement today and find the recording clause, or confirm there isn't one. That single answer tells you whether a memorandum is even an option on your deal.
• If you're an owner: order a copy of the recorded memorandum from your county recorder's website before you call anyone. You can't decide your next step until you know exactly what was filed.

About The Author

Alex Martinez

Founder & CEO, Real Estate Skills

Alex Martinez is the Founder and CEO of Real Estate Skills. He has wholesaled and flipped houses for over 14 years, been part of more than 1,000 real estate transactions, and personally acquired 55+ residential investment properties. Through Real Estate Skills, he has trained more than 6,000 investors nationwide.

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Real Estate Skills is not a law firm, and the information in this article is provided for educational purposes only. It does not constitute legal, tax, or financial advice. Recording requirements and the rules for memoranda, affidavits, and notices of interest vary by state and county and change over time. Filing a document against a property without a valid basis can expose you to legal liability. Always consult a licensed real estate attorney in the property's state before recording or challenging any document.