Buying a home is one of the most significant and complex decisions someone can make. It involves the law of real property, which is unique and raises special issues of practice and problems not present in other transactions. A real estate lawyer is trained to deal with these problems and has the most experience to deal with them.
Every state has its own set of real estate laws. For the most part, a real estate agent’s help is not legally required, though agents can help you with tasks that border on legal ones, such as preparing a home purchase contract. In some states, however, only a lawyer is allowed to prepare the home purchase documents, perform a title search, and close the deal.
However, if legal issues arise that your real estate agent can’t answer, you’ll need an attorney’s help. Ultimately, it is wise and beneficial to seek legal counsel when purchasing a home to ensure you have someone to represent you in this complex and important process.
Buying a Home
Typically, the seller enters into a brokerage contract with a real estate agent, usually in writing. When the broker finds a potential buyer, negotiations are conducted through the broker, who most often acts as an intermediary. Once an informal agreement is reached, buyer and seller enter into a formal written contract for the sale: the purchase agreement. The buyer then obtains a commitment to financing. The title is searched to satisfy the lender and the buyer. Finally, the property is transferred from the seller to the buyer, and the seller receives the purchase price bargained for in the contract. This seems simple, but without a lawyer, the consequences can be disastrous.
Avoid Unclear Terms
A lawyer can help you avoid some common problems with a home purchase or sale. For example, a seller may sign a brokerage agreement that does not deal with a number of legal problems. This happens often; realtors often use standard forms, expecting that they will cover all circumstances or will be easily customizable for unusual circumstances.
In the absence of an agreement to the contrary, the seller may become liable to pay a brokerage commission even if a sale does not occur, or to pay more than one brokerage commission. If the agreement allows the seller the right to negotiate on his/her own behalf, you may avoid this problem. A lawyer can explain the effect of multiple listings. He or she can negotiate the realtor’s rights if the seller withdraws the property from the market, or can’t deliver a good marketable title.
The seller should have the advice and guidance of an attorney with respect to a brokerage agreement. Even if the agreement is a standard form, its terms should be explained to the seller and revised, if necessary. An attorney should also determine if the agreement was properly signed.
The purchase agreement is the single most important document in the transaction. Although standard printed forms are useful, a lawyer is helpful in explaining the form and making changes and additions to reflect the buyer’s and the seller’s desires and expectations. There are many issues that may need to be addressed in the purchase agreement that the lawyer can help with.
Most buyers finance a substantial portion of the purchase price for a home with a mortgage loan from a lending institution. The purchase agreement should contain a carefully worded provision that it is subject to the buyer’s obtaining a commitment for financing.
After the purchase agreement is signed, it is necessary to establish the state of the seller’s title to the property to the buyer’s and the financial institution’s satisfaction. Usually, a title search is ordered from an abstract or title insurance company. In some states, title insurance is not typical. In such cases, an attorney is essential to review the status of title and render an opinion of title in lieu of a title policy.
If you’re in an area where title insurance is customary, an attorney can help review the title search and explain the title exceptions as to what is not insured, and determine whether the legal description is correct and whether there are problems with adjoining owners or prior owners. He or she can also explain the effect of easements and agreements or restrictions imposed by a prior owner, and whether there are any legal restrictions, which will impair your ability to sell the property.
The closing is the most important event in the purchase and sale transaction. The deed and other closing papers must be prepared. An attorney is helpful in explaining the nature, amount, and fairness of closing costs. The deed and mortgage materials are signed, and an attorney can assure that these documents are appropriately executed and explained to the various parties.
The closing process can be confusing and complex to the buyer and seller. Those present at the closing often include the buyer and seller, their respective attorneys, the title closer, an attorney for any lending institution, and the real estate broker. There may also be last minute disputes about delivering possession and personal property or the adjustment of various costs, such as taxes. If you are the only person there without a lawyer, your rights may be at risk.