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Protect yourself!
Representation in any transaction in real estate is critical. Protect yourself! Read on to find out what exactly are the roles of an attorney in a real estate transaction.
THE ROLE OF THE ATTORNEY IN BUYING & SELLING REAL ESTATE
The purchase of a home is probably the largest financial investment you may ever make. The following comments illustrate the basic issues involved in buying or selling.
(CONSULT AN ATTORNEY BEFORE YOU SIGN)
You should engage your attorney before you sign an offer, because an offer is a binding contract between the buyer and seller and defines the rights and duties of the parties. Those rights and duties may be altered or further defined in the purchase and sale agreement. Preferably, you should consult with an attorney as soon as you know you are going to buy a house or put your house up for sale.
The issues that will be resolved as part of negotiating the purchase and sale agreement are the following:
- Mortgage contingency and risk to Buyer’s deposit;
- Who pays the broker's commission if the buyer fails to complete the purchase;
- buyer's obligation to purchase the condo if building is damaged;
- seller's obligation to vacate the house completely prior to passing papers;
- seller's right to sue buyer for damages if buyer defaults (in addition to retaining the deposit);
- the buyer's right to have various inspections done at the premises, including a home inspection, pest inspection, lead paint and water, radon and Title 5 issues.
- What happens if title is not clear at time of closing.
ROLE OF ATTORNEYS IN BUYING:
- Conference with client, cover issues such as how to hold title (tenants in common, joint tenants, tenants by the entirety), information on type of property to be purchased (i.e., single family, condominium, multi-family), and financing issues.
- Review offer to purchase
- Negotiate and prepare purchase and sale agreement
- Review condominium documents and financials.
- Advice concerning financing and tailoring of purchase and sales terms to lender's requirements
- Review the results various inspections
- Review title examination with bank's attorney
- Attend closing and review papers which buyer is required to sign
- Set up escrows and special arrangements to correct title, complete construction or assure possession
- Arrange title insurance protection for buyer against losses due to title defects, if desired
- Transfer of security deposits and notices to tenants (if purchasing multi family house)
ATTORNEY FOR LENDER
- Order and review examination of title
- Order and review plot plan
- Order and review municipal lien certificate
- Draft note, mortgage, deed and other necessary papers
- Prepare for the closing, signing all papers, obtaining mortgage funding, acceptance of the deed, recording appropriate documents
- Estimate closing costs
- Pay-off existing mortgage and liens and obtain discharges or releases
- Set up escrows and special arrangements to correct title, complete construction or assure possession
- Prepare mandatory reports to IRS
- Record all documents properly
- Certify title to the buyer and lender and prepare title insurance policies
- Discuss and consider a declaration of homestead with the buyers
EXAMINATION OF TITLE
After the purchase and sale agreement has been signed and financing committed, a full examination of the title must be undertaken, covering at least 50 years, since many rights and obligations involving real estate may continue for long periods of time. Some problems that may affect the title are:
- mortgages
- taxes
- mechanics' liens
- debts of decedents
- estate taxes
- restriction on use
- bankruptcy
- estate and federal laws
- foreclosures
- divorces
- attachments and judgments
- rights of others to use the premises
Title examination requires interpretation of all the deeds, mortgages, court decrees and all other documents in the chain of title, considering the time sequence of transactions and events affecting the title, and applying the law and court decisions to the various situations arising in the title examination. Since the cost of correcting title defects is the seller's obligation, it is important that the title examination be completed and that title defects be corrected by the seller's attorney, before the buyer takes title and possession of the property.
PASSING PAPERS AND SETTLEMENT COSTS
The closing will follow the provisions of the purchase and sale agreement. The attorneys compute the adjustments for taxes, fuel, etc., and prepare a closing statement showing the amount owed by buyer to seller. The deed, mortgage and other documents are inspected for accuracy and signatures. Both buyer and seller sign agreements to reimburse buyer's bank for losses in connection with smoke detectors, lead paint, and other substances.
BUYER’S NORMAL EXPENSES INCLUDE:
- attorney's fee for services, including purchase and sale negotiations, drafting documents
- cost of the examination
- cost of preparing mortgage documents, including bank attorneys' fees
- recording charge for deed, mortgage, and municipal lien certificate
- miscellaneous expenses, such as certificate of municipal liens, plot plan, title insurance, bank application fee, points and other finance charges, if any of these are required
TITLE INSURANCE:
The vast majority of lenders require that a lender's title insurance policy be procured at the closing. This policy is part of the costs paid by the buyer at the closing. At the same time the buyer may elect to purchase for an additional one-time premium an owners title insurance policy which will protect your equity interest against any title defects or problems that existed prior to your closing.
