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Thursday, December 27, 2007

Buying & Selling Real Estate

Nearly everyone, at some time in life, faces the details of buying and selling real estate. The purchase of a home is probably the largest single investment a person will ever undertake and, therefore, careful consideration should be given to the technical difficulties involved in the transfer of real estate before any action is taken.
The Contract for Sale

Once you've found the house you'd like to buy and have agreed on the price, you will probably be asked to sign a contract and pay a deposit.

A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.

Since the Contract of Sale is such an important and legally binding Contract an attorney should be consulted within 3 days of signing. The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without their receiving the benefit of legal advice. A lawyer is trained to answer your questions and most attorneys will provide an introductory, no-obligation conference for a nominal fee. At the conference the attorney will be able to provide you with a good estimate of closing costs and other costs involved in the transaction.

You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction and your attorney will no longer have the opportunity to structure the Contract to meet your objectives.

Whether you are a seller or a buyer, you should understand the Contract terms and how they affect you. The other parties to the contract are under no obligation to tell you what the contract means and you may not understand the legal meaning of the terminology. So, if you are going to have an attorney represent you in the transaction, the time to consult one is either before you sign any papers or within 2 days of signing.

The Contract of Sale should state the parties, the purchase price and how it is to be paid, an adequate description of the property being sold, the kind of deed to be delivered, the quality of the seller's title to the property included in the sale, the date you are to take possession, and other clauses relating to the property and the parties' respective responsibilities to each other.

The contract should also permit the buyer to cancel the contract if financing can't be obtained and provide for the return of the down payment if the sale falls through. Or, perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. If so, appropriate clauses can be included in the contract defining such rights.

These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.

How A Lawyer Can Help

There are many important ways in which an attorney can help protect your interests during a real estate transaction.

For example, the purchaser's attorney (depending on local practice) can:

* Prepare, review and explain the contract of sale.
* Assist you regarding your questions on matters such as termite inspections, structural inspections, the zoning status of your property, restrictions on construction or use, and property insurance.
* Review your mortgage commitment and explain your prepayment rights.
* Order and review the survey and all title searches to clearly define the description, location and legal ownership of the property.
* Help to resolve any title problems.
* Obtain title insurance policies covering your ownership interest and lending institution's mortgage interest, and advise you about exceptions which may appear in your title policy.
* Settle any problems regarding transfer of occupancy, settlement date and possession.
* Determine adjustments for taxes and other costs.
* Prepare the final closing statement and other documents.
* Represent and advise you at the closing where documents such as the closing statement, the seller's deed and affidavit of title and the note and mortgage are signed. Also All funds are transferred at this time.
* Record the deed and mortgage and cancel any existing mortgages and liens.
* Deliver all important documents to you for your safekeeping after closing.

The seller's attorney can:

* Prepare, review and explain the contract of sale.
* Gather important title information for the purchaser's attorney, thus expediting the search and survey process.
* Resolve any title problems revealed by the searches.
* Cooperate with the purchaser's attorney in resolving possession and closing date problems.
* Assist you in determining the correct balance due on your mortgage.
* Cooperate with the purchaser's attorney in preparing the final closing statement.
* Prepare the deed affidavit of title, survey affidavit and any other necessary documents.
* Represent you at the closing and make certain that you receive the correct amount of proceeds from the sale.

Of course, these items represent only a partial list of services which may be rendered by attorneys during real estate transactions. Your attorney will perform any additional services necessitated by your particular purchase or sale.


Remember one important point - the seller, broker, and bank in the transaction may have their own legal staff representing each of their interests. An attorney representing any of the other parties is not your attorney.

It is your own responsibility as the buyer, to seek the professional advice of an attorney to protect yourself and to be sure that you get precisely what you are legally entitled to receive.

When you retain an attorney for the purchase of sale of real estate, you obtain the services of a loyal and trustworthy advisor who will guide your transaction from contract to closing. Mainly because of your attorney's efforts, the closing should be calm and amicable meeting for the signing of documents and the transferring of funds.

Home Inspection

The attorney also may represent his client's interests in connection with the home inspection report. Upon receiving a copy of the home inspections report (which generally involves a structural and environmental analysis of the property to be purchased or sold), the attorney for the buyer, after consultation with his client, will request certain repairs and/or remediation of the conditions noted by the home inspector.

In response, the attorney for the seller will advise what action the seller is willing to take to meet the buyer's concerns. Often depending on the terms of the contract, if agreement cannot be reached on issues raised by the home inspection report, the buyer or seller may cancel the contract. More realistically, however, the attorneys for the seller and buyer work to reach a compromise acceptable to both clients.


The important thing to remember is that buying a home is a major investment. It usually involves making payments over a period of 30 years. In the long run, it's likely to be more economical to have competent professional advice - your attorney's advice - in making the purchase than to risk the trouble and expense that could result from not having that advice in the first place.

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