Congratulations! You’ve finally decided to make the exciting and equally terrifying decision to purchase a home! Or maybe you’re looking to sell your home in order to upgrade or downsize. If you’re buying, you’ve saved up money for a down payment, worked on your credit, got pre-approved for a mortgage, have a budget, and set out looking for your dream home. You look online and/or ask family and friends if they can recommend a real estate agent. You go to open houses and are looking at a variety of homes.
You find the house you love, the excitement builds, and you start thinking about paint colors and where you’re going to put the big screen TV. The agent is telling you to make an offer to purchase, and discusses what steps would be involved moving forward. Everything seems to be going smoothly, and you think to yourself – why do I need to spend more money on an attorney, especially when the agent is so nice, and is helping me through the process?
Other professionals involved in these transactions may ultimately have goals that do not necessarily align with your best interests as a buyer or seller. Once executed, an Offer to Purchase becomes a legally binding contract in Massachusetts. Similarly, the “standard form” Purchase and Sale Agreement is also a legally binding contract, and odds are, does not fully protect your interests, or include important terms and contingencies. Having an attorney look out for your best interests and ensure that all the t’s are crossed and i’s dotted, is why most, if not all agents recommend that an attorney be involved in the process, as these other professionals may only worry about getting the transaction to a close, while others may be representing the opposing party or the interests of the bank/lender.
Hiring an attorney to represent your interests is extremely important when buying or selling real estate. Here are five reasons why:
1. HAVE SOMEONE REPRESENT YOUR INTERESTS
First and foremost, as discussed above, an attorney will represent YOUR interests. Purchasing a home is likely the largest financial transaction of your lives thus far, and perhaps will be for your entire lifetime. Agents, lenders, other attorneys, inspectors, and others involved in the process are not necessarily looking out for your best interests. Some of these professionals only care about the property closing, and not necessarily on how it gets to closing. Moreover, other attorneys involved may be representing the opposing party or the bank. Attorneys should be involved from the start, but usually and unfortunately, only become involved only after an offer is signed, which, as described below, can lead to unintended, and often avoidable mistakes that could derail the transaction or cost you more money to address.
2. DRAFT, REVIEW, AND NEGOTIATE DOCUMENTS
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 legally binding; closing documents (HUD-1 or Closing Disclosure) and other lender closing documents; and Title documents (more on this below). 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. We always provide our clients with a buyer or seller addendum which we incorporate into the P&S.
Highlighting the importance of attorney review and drafting of these documents, recently, we were involved in a transaction 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 we became involved to review the standard P&S, the buyers’ attorney would not allow the term to be included in the P&S since it was not included in the accepted Offer. Ultimately, we needed to negotiate a contingency with the buyers’ attorney, and eventually were able to come to a mutually acceptable term to include in the P&S. Had we been involved in this transaction sooner, we would have caught the omitted contingency, avoiding the issue that it created for our clients.
Tying in with point one above, and beyond drafting appropriate documents, attorneys bring experiences to the table and know how to handle situations and problems that may arise in any given 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, and which may require addenda to the P&S. An attorney can understand your rights and the implications and/or consequences of each decision.
4. TITLE ISSUES
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 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.
Finally, 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 who, and whose interests are being protected, and will ensure that no other attorney will be able to take advantage of an unrepresented party.
If you or someone you know is looking to purchase or sell a home, contact a qualified attorney at PK Boston to assist throughout the process and best represent and protect your interests.