Do You Need a Lawyer on a Purchase and/ or Sale of a Home or Real Estate?
UPDATED: February 9, 2020
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The simple, and obvious, answer is yes, of course you do. A real estate attorney can be key to the success of any real estate transaction, whether buying of selling. The attorney should be involved from the very beginning of the transaction--the listing of the property with a real estate broker or the decision to make an offer--to the final closing of escrow.
While real estate agents also play an important role, they are not attorneys and lack the training and experience of a real estate attorney. The real estate agent lists and sells properties for clients and advises clients to consult with outside experts--including home inspectors, pest inspectors, surveyors, and contractors--to assess the condition of a given property.
But a real estate attorney who regularly works with these kinds of experts can refer clients to qualified and experienced experts, A real estate attorney also can prepare offers to purchase real property for clients, review all offers received by clients, and prepare any counter-offers or addendums to a sale. In addition, an attorney can review and explain documents and give legal opinions to clients.
A real estate attorney often inserts language into real estate transaction documents to protect clients if they decide not to go through with a sale or purchase. A document may stipulate, for example, that a buyer must approve a home inspector's written report before completing a transaction.
In most states, a licensed real estate attorney does not need a real estate license because the attorney is presumed to have knowledge of current law and any pending changes and experience in the practice of real estate law.
Many of the pre-printed contracts used in every state acknowledge the valuable role of an attorney and recommend, in a provision at the bottom of each page, that an attorney be consulted about the transaction. An attorney's involvement assures buyer or seller that documents being signed are valid, that required disclosures are made, and that legal safeguards are met.
A real estate attorney can play other valuable roles in a real estate transaction:
1. Real estate attorneys know about current problems and new laws affecting real estate transactions. They are able to explain and advise about such issues as short sales, loan disclosures, Federal RESPA loan violations, and foreclosures.
2. Real estate attorneys can help resolve situations that threaten the successful close of a transaction. For example, if a seller has not paid a contractor for required repairs, an attorney might suggest that the amount in question could be held back in escrow from the distribution, permitting the buyer to take ownership of the property.
3. Real estate attorneys, who are involved in hundreds of sales and regularly attend seminars or teach about real estate sales, have the experience to resolve issues involving a disclosure, escrow problems, or any issues involving the buyer's lender when a loan is needed to fund the sale.
Most real estate attorneys charge for their services on an hourly basis which, given the price of real estate, will probably be considerably less than what a real estate agent earns as a commission. Since a real estate attorney legally can do more than a real estate agent, a buyer or seller gets more value for the money by using a real estate attorney, rather than a real estate agent, in a transaction.
Unfortunately, most buyers and sellers have their first contact with an attorney when a problem with the property arises after the sale has been concluded. Examples might be physical defects with the property that were not disclosed by the seller or a situation where the seller finances the sale but the buyer is not making the payments.
In most such situations, the problems would not have occurred if an attorney had been involved earlier, foreseen the potential problems and taken steps to avoid them. Lawsuits rarely arise when an attorney has been involved because an experienced real estate attorney addresses problems that could lead to a lawsuit before the close of a sale.
So, again, the answer is yes. A real estate attorney should be involved in all transactions involving the purchase and sale of property.