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Three Steps in a Residential Real Estate Transaction
Offer to Purchase
Purchase and Sale Agreement
Why Real Estate Attorneys are Important
Buying or selling a home is likely the largest financial transaction of your life, and having someone in your corner making sure the contract terms best represent your interests is extremely important. The livelihoods of many of other professionals involved in the transaction depend on the sale being completed, as they get paid on a commission basis. Other attorneys involved in the transaction may be representing the interests of the other party, or the lender. Hiring a real estate attorney will ensure that your interests are best represented and protected in any offer, agreement, rider, amendment, extension, etc., regardless of whether the transaction comes to a close.
Real Estate attorneys bring experience and knowledge to the table on how to handle situations and problems that may arise in the transaction. Likewise, attorneys know what has and could go wrong and can draft documents around those potential issues that either you on your own, or the agent, may not think of. There are issues regarding deadlines and extensions, and other issues that may present themselves at a moment’s notice. An attorney can understand your rights and the implications/consequences of each decision.
The documents involved in a real estate transaction include at least: an Offer to Purchase, which once signed, is a legally binding contract in Massachusetts; Purchase and Sale Agreement (“P&S”) in which all provisions are also binding; closing documents (HUD-1 or Closing Disclosure); Title documents (more on this below), and lender closing documents. These are all complex, legally binding documents, and failing to have legal representation can result in financial loss, or worse. All too often, buyers lose their deposit because they didn’t have an attorney review an Offer or P&S. It is similarly important to have an attorney review these documents to ensure your rights and interests are protected as best as possible, as even “standard form” P&S Agreements do not contain all necessary terms, and the majority of the language found in a standard form purchase and sale agreement protects the interests of the buyer. We always provide our clients with an addendum to add onto the P&S.
Highlighting the importance of attorney review and drafting of these documents, Attorney Zuccaro was previously involved in a transaction only after the Offer to Purchase, which was completed by the agent, was signed by both the buyers and sellers. The agent, in a hurry to get the document signed due to time constraints, failed to include an important contingency term in the Offer to Purchase. Once Attorney Zuccaro became involved to review the standard P&S, the buyers’ attorney predictably would not allow the term to be included in the P&S since it was not included in the accepted Offer. Ultimately, Attorney Zuccaro needed to negotiate a contingency with the buyers’ attorney, and eventually (luckily) came to a mutually acceptable term to include in the P&S. Had he been involved in this transaction sooner, he would have caught the omitted contingency, avoiding the issue that it created for the clients.
Title issues – such as past deeds, judgments, divorce decrees, foreclosures, unreleased mortgages, mechanic’s or other liens, among other issues – arise often today and real estate attorneys and lenders are usually unwilling to negotiate when a title issue is discovered. Especially if you are selling, it is very important to have an attorney experienced with title to facilitate the matter, so you don’t lose a buyer. If you’re buying, you need to understand the risks involved with your title situation. All the bank’s lawyer is concerned with is acceptable title, so they generally won’t explain any issues to you, as long as their client – the bank – is satisfied.
Although by the time closing comes, most of the issues that have been discovered and raised during the various contingency periods have been addressed, it is still important to have an attorney to assist with the closing. The closing attorney represents the bank/lender, and while it is possible for them to represent the buyer as well at the closing, it is always good practice to make sure that there is someone looking out specifically for you, and not you and the bank. Having an attorney represent you at the closing, will ensure that there is no mistake as to who represents whom, whose interests are being protected, and will ensure that no other attorney will be able to take advantage of an unrepresented party.
If you are selling, it may not be necessary for you to actually attend the closing. If we receive the closing documents from the lender/buyer attorney, we can meet prior to the closing to review and execute the documents. We can also execute a Seller’s Limited Power of Attorney which grants us the ability to sign the majority of the closing documents for you, although you will still need to sign the deed.