Do I need an attorney if I am buying or selling a home?
That is a question virtually every purchaser and seller of a home asks, especially if it is not the first time they have bought or sold a house. Understandably, as a buyer you are spending a significant amount of money purchasing the home and want to limit costs. As a seller, you are receiving money from the sale and want to maximize the return on your property without incurring unnecessary legal fees. However, where a significant amount of money is at stake for both buyers and sellers, an attorney can make sure that this transaction is performed correctly and that your interests are protected.
Offer to Purchase
As a buyer, once you have found your home and are prepared to make an offer, an attorney can work with you to prepare the offer to purchase. Buyers should be wary of pressure-inducing brokers who encourage a buyer to immediately fill out the standard form offer to purchase. The standard form offer may not provide all the necessary protections for a buyer (depending upon the circumstances surrounding the purchase). For example, there may be certain repairs a seller must perform or appliances that are to be removed (or left behind). The offer to purchase must clearly delineate those terms or expressly state that the buyer’s offer is contingent upon the subsequent execution of a purchase and sale agreement. Otherwise, the offer to purchase alone may be construed as the full agreement of the buyer and seller concerning the sale of the property and it will not have all of the necessary provisions and protections.
Purchase and Sale Agreement
The purchase and sale agreement is the full and complete agreement between the buyer and seller concerning the sale of a home. The agreement spells out all of the rights and responsibilities of the parties including the specific property being bought and sold, deposits to be paid, what happens if the buyer cannot secure financing from a lender and therefore cannot complete the sale, and when the closing will take place. In many instances, buyers and sellers should not rely upon a standard form purchase and sale agreement as it is unlikely to include all terms necessary to protect each parties’ interests. The importance of a well-crafted purchase and sale agreement cannot be overstated, and both a buyer and seller would do well to have an attorney review this document to make sure their rights are protected and their responsibilities are clearly delineated.
Buyers and sellers often wonder whether they need an attorney to assist them with the closing itself, pointing to the fact that the lender will send an attorney with the documents for execution. However, the lender’s attorney represents the interests of their client (the lender) and does not represent a buyer or seller at closing. For buyers, an attorney can review and explain the Loan Estimate and Closing Disclosure forms prior to closing. At the closing, the attorney can review and explain the many other documents and forms that the lender will require the buyer to sign, most importantly the promissory note and mortgage. For sellers, the attorney can prepare the deed and review and explain the seller’s Closing Disclosure along with any other documents the seller may be obligated to execute at closing. For both buyers and sellers, having an attorney represent them at closing provides clarity to what can be a stress-inducing, convoluted event.
Although not required by law, buyers and sellers are often well-served having legal counsel assist them in the purchase and sale of a property. From handling the technical aspects of title, to ensuring all of the disclosure forms reflect accurate amounts, to preparing a detailed purchase and sale agreement, having an attorney can make the process move quickly, efficiently and afford both buyers and sellers a certain confidence knowing that someone is looking out for their interests.