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Do You Need An Attorney To Buy Or Sell A House or Commercial Property?

December 02, 2021

Whether you are thinking of selling your property, want to move to a new neighborhood, or are a first-time buyer looking to get on the property ladder, the route to buying or selling a residence or commercial property is far from easy. 

It is always a good idea to hire an attorney when dealing with complex legal matters, and transferring the ownership of a property certainly falls under that category. 

Today we are going to give you a detailed account of the many ways Meimaris Law can help you during the property buying and selling process.  

Do you legally need an attorney to buy or sell real estate?

With so much at stake during the property buying process, for both sides of the arrangement, ensuring everything is completed correctly is essential to avoiding future legal problems.

Despite the huge financial consequences resulting from buying or selling real estate, doing so with an attorney to guide you through the process is not legally required in most states.

However, real estate can be a complex area, and attorneys make sure all the paperwork is in order, there are no legal problems with the property, and no outstanding debt on the property. 

To safeguard your rights, it’s a good idea to hire a real estate lawyer. They can ensure that you’re getting a good deal, and see that the sale is closed correctly. 

Let’s look into what a real estate lawyer does before discussing the benefits of selling or purchasing a home with their help. 

What does a real estate lawyer do?

A real estate lawyer, or real estate attorney, is a licensed professional specializing in dealing with the legal aspects of real estate transactions. 

They’re familiar with the processes of buying and selling property and can represent both buyers and sellers during their real estate journeys. 

In Massachusetts, it is required by law to have a real estate lawyer present when “passing papers” at the purchase/sale of real estate (at the “closing”). 

Many people hire an attorney before they sign the Purchase and Sale Agreement, at the time when the buyer makes a written “Offer to Purchase”, or the seller accepts the Offer to Purchase, to ensure all terms of the deal are stated accurately prior to entering into the Purchase and Sale Agreement. It may be difficult to add or change terms in the Purchase and Sale Agreement if they were not indicated in the Offer to Purchase. 

Why do you need an attorney to buy or sell a property?

Typically before a property is “put under agreement”, the buyer’s real estate agent will conduct negotiations with the seller’s real estate agent (“listing agent”) regarding the terms of the deal. The buyer makes a written offer to purchase and the seller accepts it. After an offer is accepted, the buyer and the seller will enter into a written contract to sell the home. This is called the Purchase and Sale Agreement. 

Whether you are a buyer or seller, it is very important to have a lawyer prepare and review the Purchase and Sale Agreement because this is a legal contract which cannot be changed. If it contains incorrect information or important terms are missing, it cannot be changed later. 

You are stuck with the consequences. 

The buyer risks losing their deposit or the seller risks the deal falling through and putting the property back on the market all over again. Lawyers are aware of which terms should be included in this contract in order to protect their clients.

When the attorney represents the buyer, after the Purchase and Sale Agreement is signed, the attorney guides the buyer in obtaining a financing commitment from their lender for the mortgage. 

The attorney is responsible for obtaining a plot plan and title examination to be sure that “title is clean” and there are no title defects, such as encroachments over boundary lines, liens, adverse claims on the property resulting from previous bankruptcies, previous spouses, previous lawsuits, or heirs to an estate (in the case when the previous owner died).    

If title defects are found, the attorney knows what actions to take to fix them so that the deal does not fall through.

If you have an attorney represent you when buying or selling property, they can help you through all of this. 

Here are four essential parts of buying property that a real estate lawyer can help you with. 

1. Avoid unclear terms

The Offer to Purchase as well as the Purchase and Sale Agreement contain many terms that are important and should be clear. You should understand them and know what you are signing. There should be no unexpected surprises later which may add to the price or delay the closing. 

2. Guide you through the Purchase and Sale Agreement

The Purchase and Sale Agreement is the most essential document in the entire transaction. It might sound like a simple form to fill in and sign, but sometimes legal forms can be confusing and tricky. 

Your lawyer can help explain what the terms mean and help you make any changes or additions that are necessary to protect your interests as buyer or seller. 

A real estate lawyer can also help you address other issues such as:

  • Find out whether the property was altered or extended lawfully
  • Determine whether you, as the buyer, can legally change the property
  • Verify whether the property is in a flood zone
  • Assist you to arrange inspections for structural defects, termites, asbestos, radon, or lead-based paint 
  • Discuss the legal outcomes if the closing does not occur – what happens to the down payment? Can you be sued?

3. Conduct a title search or title examination

Attorneys are vital when it comes to conducting a title search on the property. A title exam is ordered to ensure that the property is free of any encumbrances like those mentioned above.

You have to conduct a title search to determine whether the seller actually owns free and clear what they are selling. If the title search uncovers something problematic, then your attorney can counsel you on the best path forward. 

4. Close the sale for you

The Closing is the final important part of any property purchase or sale. This includes the process of signing many documents which have been prepared by the parties’ attorneys as well as the lender. The title passes from the seller to the buyer, and the purchase price balance is paid. 

A Closing Disclosure must be prepared and reviewed by the buyer and seller before the closing date to show the debits and credits to the buyer and seller. In Massachusetts, you legally must have an attorney present during the Closing but having an attorney present makes everything a whole lot easier anyway. 

As soon as the new deed and the other closing documents are signed, the attorney must ensure the documents are correctly recorded at the appropriate Registry of Deeds in the county where the property is located. Once the documents are “on record”, it’s a done deal.

Don’t forget about the tax consequences

If you are selling real estate, you could be liable for capital gains tax if the property you are selling has increased in value. However, you may be able to avoid this if you know which legal options are available to you. Having a real estate lawyer to counsel you can enlighten you to avoid unnecessary taxation. 

Why you should hire Meimaris Law for your real estate transaction. 

With over 25 years of experience representing buyers, sellers and lenders of both residential and commercial real estate transactions, Meimaris Law prides itself as a boutique law firm which is dedicated to getting the job done. 

We associate with other professionals and work well together as a team to streamline the process. We are quick to respond to communications and guide our clients through every step of the process. 

Get in touch today for a free consultation with our team and let’s talk about how we can help you with your real estate legal needs.

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