For most people, buying or selling a home is likely to be the single most important transaction in a lifetime. Here’s some advice about how to protect your interests when you’re involved in the sale of a home, as either a buyer or a seller.
The Listing Agreement (Legal Contract between you and an Agent)
If you’re selling your home, the first document you may encounter is a real estate broker’s listing agreement, in which you hire a broker to find a buyer for your home and agree to pay the broker a commission for doing so. It covers such important questions as whether the listing is “open” (any broker can sell it) or “exclusive” (only your broker can sell it); how long the listing will remain in effect; the selling price and terms of sale; and how much the broker’s commission will be.
Once signed, that listing agreement is a written contract between you and the broker. It creates certain legal obligations for both of you. Before you sign that contract you may want to review its terms with an attorney.
The Offer to Purchase (Use an Attorney before it becomes a contract)
If you are a prospective buyer and are interested in a house, the broker will prepare an Offer to Purchase and ask you to sign it and make a deposit on the property. If the seller accepts and signs the offer, without any change in its terms, then the Offer to Purchase becomes a binding contract between buyer and seller.
Whether you’re a buyer or seller, you may want to have an attorney review the Offer to Purchase before you sign it and becomes a contract. A real estate broker may not have the legal training to recognize all the problems that could result from an imperfectly drawn contract.
The buyer’s attorney will make sure that the purchase is conditioned upon the buyer’s ability to obtain a mortgage loan or other necessary financing; that any “extra” items included in the sale (such as drapes or kitchen appliances) are listed in the Offer to Purchase; that the buyer is not agreeing to assume any liens or other claims on the property (such as special assessments for street paving) which should be the seller’s obligation, or which would interfere with the buyer’s use of the property.
If the buyer wants a municipal inspection of the property, a termite inspection, engineering studies or water quality tests, these should be stated in the Offer to Purchase before the sale is completed.
The seller’s attorney will make sure that a reasonable limit is placed on the time the buyer is given to obtain financing, so that the property is not held off the market for too long, should the buyer not qualify for a loan.
What if I’ve Already Signed?
Take the contract to an attorney immediately. If it does contain errors or unclear provisions, you may be able to get it changed by agreement with the other parties.
The sales agreement generally provides that the seller will arrange and pay for evidence of title, including any title insurance. The buyer’s attorney will review the evidence of title to be sure that the ownership of the property is undisputed. Attorneys for the seller and the buyer will review the adjustments for taxes, water bills or insurance premiums paid or due, and will discuss the financial details with their respective clients before the closing (final business transaction of sale).
If a new home is involved, the buyer’s attorney will request any necessary certificates of completion or occupancy and will attempt to protect the buyer’s interest if the builder has not completed and paid for all the agreed-upon improvements. An escrow fund to insure completion and payment of any potential liens (claims) against the property will be requested.
Do I Need an Attorney if I’m Buying a Condominium?
It’s certainly advisable. In addition to all the legal questions surrounding the purchase of a single-family home, condominium home ownership involves additional questions best explained and reviewed by an attorney. Among these are such questions as association dues and assessments, responsibility for common (shared) elements of the property, and relations among condominium homeowners and their association.
What is the “Closing”?
A real estate closing is the occasion at which title (ownership) is transferred from the seller to the buyer. If there’s a land contract involved, seller and buyer both sign it. (Title is not transferred at the start of a land contract.). If the purchase involves a mortgage loan, the buyer may sign the loan documents at the closing. Under federal regulations there are usually many other papers to be signed.
Customarily present at the closing are the seller, the buyer, their attorneys, a representative of the mortgage lending institution (if a loan is involved) and the real estate broker. The closing may take place at the offices of the lending institution, the broker’s office, a title insurance company or the office of one of the attorneys.
The role of the two attorneys (buyer’s and seller’s) is to make sure their clients are fully informed of all the legal meanings and effects of the documents they are signing, and to attempt to protect their clients’ legal rights. You, the client, should always be sure that you understand what’s being signed.
The attorney will see that a closing statement and the other closing documents are executed by buyer and seller, that the necessary documents are exchanged and that required payments are made.
Following the closing, the attorneys will make certain that the money paid at the closing is properly transferred and that the correct papers are officially recorded.
What Will a Real Estate Attorney Cost?
An attorney’s fee depends upon the time required, the attorney’s ability and experience, the nature of the work, the responsibilities involved, and, in some situations, the results obtained. An attorney is required by the legal profession’s Code of Professional Responsibility not to charge more than a reasonable fee for his or her work. You should discuss the question of fees with the attorney at your first meeting, and come to a satisfactory arrangement so that you know what this cost will be.
How Do I Find a Real Estate Attorney?
If you do not have a family attorney, you could ask friends or relatives for a recommendation, or you can call your local bar association Lawyer Referral Service for referral to an attorney. The Statewide Lawyer Referral number is (800) 292-7850.
A Final Word of Advice
Whether you are buying or selling a home, it is important that you be represented by your own attorney. Any other lawyer involved in the transaction is obligated to represent the interests of the person who hired him or her. Only the lawyer you engage can put your interests first.