THE ROLE OF THE ATTORNEY IN REAL ESTATE TRANSACTIONS
For most people, the purchase and sale of their homes will be the largest financial transaction that will occur during their lifetimes. As a result, the importance of wholly protecting such an investment cannot be overstated. From the day you make your decision to buy your home until such time that you have become the legal owner, there are a number of important decisions you must make which have legal consequences. The following is a brief summary of several aspects of your sale and how your attorney may assist you.
The Real Estate Contract
The Contract, or Offer to Purchase, is a very important document and should contain all of the terms involved in your purchase, including the purchase price, and how it is to be paid, a description of the property being purchased, and any conditions of the purchase. You should read any Contract or Offer to Purchase carefully before signing it. If you have any questions concerning the meaning or effect of any portion of the proposed contract, you should consult your attorney before signing it. The Contract is a legal document and is binding on the seller and buyer.
If you are obtaining a loan, your lender will require that an attorney examine the county land records prior to closing. If you are not obtaining a loan, you should still have your attorney examine the records to make sure you are buying what you think you are and the property is free and clear of (1) claims of others, (2) judgments, (3) outstanding mortgages or foreclosures, (4) unpaid taxes, (5) defective deeds (6) bankruptcies and similar defects. Your attorney will report to you, your lenders, and the title insurance company, if applicable, what his search of the public records disclosed.
Title insurance insures against hazards inherent in real estate titles, but which may not be apparent from the title search. Your attorney cannot guarantee against certain defects in the title not generally discoverable from a review of the public records. Defects of this sort include forged deeds, missing heirs, clerical errors and the like. However, a typical title insurance policy will protect against defects such as these. Your lender may well require that you protect its investment with title insurance, as you may also do, as owners. Your attorney will apply for the title insurance for you.
Prior to closing, instructions from the lender are sent to your attorney, a survey is completed, pest inspections are made, you will have obtained a homeowner's hazard insurance policy and arrangements will have been made for defects or incomplete items. the attorney is responsible for preparing all necessary closing documents, scheduling the closing, explaining all necessary closing documents and having them properly executed and recorded. You will receive copies of most closing documents, including an itemized record of all money paid by you on your behalf.
Selection of an attorney
Thus, an attorney's role in real estate transactions may include consultation prior to signing of the Contract, preparation of closing documents, the title search and certification, presiding over the closing and recording of the deed and mortgage. All of this work is done in close coordination with the Buyer(s), Seller(s), Realtor(s), and Lender(s). The attorney strives to assure that this complex procedure is carried out accurately and efficiently. Therefore, choosing an experienced real estate attorney to handle your purchase and the closing is especially important.
Select an attorney who represents your interest
If you are paying the attorney fees, you alone should select the attorney to insure that your interests are being represented and not that of the other parties in the transaction.
Want More Information or Still Have Unanswered Questions?
The above comments are intended as an introduction to legal issues that may be involved in a real estate transaction and not as any specific legal advice or opinions. If you have any questions, you should contact one of our attorneys.