This is a question I get asked often, particularly here in Missouri where it is not customary to use lawyers in home purchases unless or until something goes wrong. Oddly, in other parts of the country, NOT using an attorney is considered foolhardy or even against the law. If you are like most people, buying a home is the most significant and largest purchase you will ever make, and it is often a major cause of stress.
Since we live in a more mobile society, geographically as well as economically, it is also very likely that you will buy more than one home in your lifetime, thus subjecting yourself, your assets and your family to major liability exposure more than once.
Why not reduce the stress in your life by relying on your real estate attorney, whose experience in this area of real estate, whether you are using an agent or are FSBO, can guide you seamlessly through and help you get better terms in a more comprehensive review of the entire deal?
The law of real property is complicated, and a real estate lawyer is trained to deal with the unique problems and issues that can, and often do arise for home sellers and buyers. Although in recent years we have streamlined the home-buying process with standard contracts and on-line brokerage listings, the liability exposure and danger to buyers and sellers has not been eliminated. As the recent mortgage meltdown illustrates, the dangers may be worse than ever.
“Standard contracts” are usually drafted on behalf of the local Realtors Associations, whose members have economic interest making the sale. Sometimes a local Bar Association or private attorney drafts the documents. Realtors are an important and oftentimes necessary part of the home sale transaction, but the “standard contract” will have clauses that are better or worse for you, depending upon whether you are a Buyer or Seller. We feel that Buyers are at a particular disadvantage in this area and should have the contracts modified in various circumstances.
Below are a number of specific areas where your attorney can be indispensable to you when buying or selling your next home. The best part is that hiring a lawyer in this area is relatively inexpensive…a drop in the bucket when compared with the overall purchase price and even agent commissions.
Click on any of the links below to learn more about that particular area.
Your lawyer is the only completely objective party acting on your behalf. Even the best real estate agent is not licensed to make changes to the standard contracts, and should not be asked to give legal advice. It puts the agent or broker in an unfair and uncomfortable position, risking his/her real estate license in order the please the client. It is also a disservice to the client, as the agent or broker is not trained or licensed to provide the advice the client seeks.
Even a standard agreement is many pages in length and will cover an array of areas. Having you attorney involved from the beginning can resolve potential problems in your favor before they even arise.
Mortgage brokers get paid based upon signing up qualified applicants for mortgages, which creates some conflict of interest between them and the client. A lawyer will review documents from the lender, and can also draft the Note and Deed of Trust / Mortgage documents n cases of owner take-back financing.
In the For Sale By Owner transaction, there is no telling whether the contract actually matches up to their expectations and, since there is no realtor, using a standard realtor’s form makes little sense.
The Rent-to-Own situation is generally a result of the inability to sell the home outright. Whichever side (normally the seller, but not always) hires an attorney to draft the rent-to-own contract will be at a tremendous advantage.
A Short Sale is when the bank is willing to take less than is owed on the mortgage, in order to avoid paying to foreclose. An attorney is needed to keep a watchful eye on them, as well as to make sure the deal is not structured in such a way as to constitute a fraud on the bank.
For Experience and Skill
Your attorney will either have seen and dealt with a similar situation to yours in the past or, at the very least, will be tooled with the skills and resources needed to assess the issues and help you determine your options and a likely resolution. It is particularly risky to move forward without legal representation when the other side either is an attorney or has one they are consulting. In addition, there are particular areas and issues that are trickier than others, and for which you will likely want legal advice.
Your real estate lawyer will help you quickly sift through the title commitment and advise you as you any problems. You will also want your attorney to review the survey to make sure it matches up with the description in the title commitment, and to use it as a check on the title commitment exclusions to the insurance policy.
Zoning regulations, environmental regulations, and other factors play a part in the market value of property. You may want to know what was done in the past or what is planned for the future to affect the ultimate sale price.
If you are buying a condoco-op, make sure you have your attorney review the Covenants, Conditions and Restrictions (CC&Rs) or Bylaws, which lay out your rights and obligations.
A Home Owner Association (HOA) is a group of owners who are part of a mutual benefit organization that governs the activities and aesthetics or the area covered. An attorney can advice you of your rights and obligations through a review of the HOA bylaws.
At Closing, the buyers may be given literally hundreds of documents they have never seen before. Having your attorney present can cut right through all this so that you are confident you are only signing the documents you need to sign and that you understand what you are signing BEFORE you sign it.
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