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.
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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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.
Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.
He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.
He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
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Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
North Brunswick Senior Day 2001
Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996
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