Look
Before You Leap: Consult a Real Estate Attorney Before
Buying or Selling a Home
Whether
you are buying or selling your first home, retirement
home or something in between, there is no such creature
as the "routine" residential real estate transaction.
Each parcel of real estate is unique and each party to
a real estate transaction has individual needs and desires.
You invest a great deal of time and effort, not to mention
hopes and dreams, in selecting the piece of property that
is right for you. Every residential real estate transaction,
no matter how simple it may seem on the surface, involves
a host of complex legal, regulatory and financial issues
that must be handled appropriately.
Whether
you are the Buyer or Seller, if you are going it alone
without an experienced attorney, it can be a daunting
task to anticipate all the hurdles and pitfalls that might
occur. Decisions made at each stage of the process can
affect the end result of the transaction. A Buyer can
risk losing his or her deposit and a Seller can risk losing
the deal without adequate compensation for the time his
or her property has been off the market. In many instances,
for less than 1% of the selling price, a Buyer or Seller
may engage an experienced real estate attorney not only
to protect their interests but to provide invaluable advice
and counsel in what can be a very anxious and nerve racking
process. Before you sign a Listing Agreement with a Real
Estate Broker or agree to an Offer to Purchase Real Estate,
you may avoid heartache and heartburn if you engage the
services of a knowledgeable and experienced real estate
attorney.
In
each sale of real estate, there are many agreements and
documents that pass between the Buyer and Seller or require
the commitment of one party or the other. These documents
can include Exclusive Listing Agreements with a real estate
broker, Offers to Purchase Real Estate, Purchase and Sale
Agreements, Escrow Agreements, and Use and Occupancy Agreements,
to name only a few. Even so-called "standard"
documents can contain legally binding obligations and
rights that may be inconsistent with your needs or favor
one party over the other. Additionally, as with any area
of the law, there are many customs and practices that
can cost the uninitiated Buyer or Seller time and money.
While most documents that are required in a real estate
transaction are fairly routine, each document can be an
opportunity to advance your interests or for the other
party to take advantage. It is important to have these
documents examined before legally binding yourself to
terms you did not anticipate or want.
Buyers
and Sellers both frequently run into trouble when they
assume that the Offer to Purchase Real Estate is just
an informal document that sets the basic terms of the
sale and that there will be an opportunity for more negotiating
when formalizing the Purchase and Sale Agreement. They
believe they can back out of the deal prior to signing
the Purchase and Sale Agreement. However, under Massachusetts
law, an Offer can be binding on both parties if the Offer
contains the basic terms of a description of the premises
and the selling price. For a Seller, that can mean that
even if you receive a higher offer, you will be bound
by your agreement with the Buyer who offered you less.
For a Buyer, you can be required to buy the property even
if you find your dream house around the corner.
Many
Buyers and Sellers also face the vexing problem of title
defects. While some defects in the title can be fatal,
such as discovering that the Seller does not really own
the property, many defects that occur are minor and can
be over come by the diligent work of both the Buyer's
and Seller's attorneys. When the parties discover there
is a title problem, panic usually sets in. What if you
learned that despite paying off a mortgage, the mortgage
is still showing up on title? An experienced real estate
attorney can not only provide comfort in these times of
apparent crisis, but they can fix the problems or negotiate
a solution which allows the closing to go forward on time
as scheduled.
Buying
a home is, more often than not, the biggest investment
of heart and money in a person's life. Selling a home,
too, has many challenges and thousands of dollars can
be at stake if the sale does not close in a timely fashion.
Buying and selling real estate need not be a nightmare.
With a little sound advice up front, the process can be
relatively painless. Instead of risking a lost deposit
or having your sale fall through or delayed, for a small
percentage of the overall cost of the sale (usually a
few hundred dollars), you can have the peace of mind of
knowing that legalese hidden in a contract will not be
giving you an unpleasant surprise you when you least expect
it.