THE ROLE OF AN ATTORNEY IN THE PURCHASE OR SALE OF YOUR HOME

For many individuals, the purchase or sale of their home represents one of the most significant economic decisions of their lives. The legal issues that arise differ in each case and, therefore, retaining the right attorney to protect your individual interests is crucial.

 

Once the parties have orally agreed as to the purchase price of the home and the personal property included in the sale, the attorneys for both parties should be contacted to inform them of the specific details of the transaction so that they may begin the legal process.

Contract of Sale

In advance of signing the Contract of Sale, the parties should discuss with their respective attorneys the closing costs involved and any concerns that they may have regarding the transaction. It is the attorney's role to make sure that the client understands his obligations under the Contract of Sale before he signs it.

 

The Contract of Sale is the legal document which embodies the intentions of the parties and sets forth: a description of the real and personal property being sold, the purchase price, the amount of financing to be obtained by the purchaser, the closing date and a variety of other provisions relating to the property and the parties' rights and obligations. The Contract of Sale should reflect the entire understanding of the parties.

 

Upon signing the Contract of Sale, the parties are legally bound. If the parties should change their minds afterwards, they may lose their down payment or may have to pay money damages. Consulting with the right attorney before entering into the Contract of Sale is, therefore, critical.

 

Title Searches and Title Insurance

After the Contract of Sale has been signed, the Purchaser's attorney often orders a title search. The title search reveals the true legal description of the property and the existence of any liens and other encumbrances affecting the property. Typically, the title search will also indicate the legal status of the home and other improvements on the property.

 

The Purchaser must be assured that his or her right to occupy the home and property will be without interference and that there will be no problems when he or she later attempts to sell or mortgage the property.

 

Title insurance is payable by the Purchaser in the form of a one time premium charge at the closing and protects the Purchaser against loss by undisclosed claims to the property.

 

As the Seller, your attorney should clear up any title problems that may be discovered by the title search well in advance of the closing. As the Purchaser, your attorney should review the title search accurately to make sure you are receiving good and marketable title to the property. In both cases, it is important for you to select an attorney who is experienced in matters affecting real estate titles.

 

Mortgage Financing

In most transactions, the Contract of Sale provides that the Purchaser will be able to receive the return of his down payment if he is unable to obtain the required mortgage loan commitment within a certain period of time.

 

The Purchaser's ability to obtain the mortgage loan will depend upon, among other things, the Purchaser's income, the amount of the down payment and the value of the property. An experienced real estate attorney will be able to review the Purchaser's finances and advise him as to the type of mortgage he should apply for.

 

Once the mortgage loan commitment has been issued by the lending institution, the Purchaser's attorney should review it and explain it to the Purchaser so that he understands all of his obligations under the mortgage.

 

The attorney representing the Seller must make clear to his client that until the Purchaser has obtained the required mortgage commitment and a title search has been conducted and reviewed by the Purchaser's lending institution, his home may not be sold.

 

The seller who, on the strength of a signed Contract of Sale, signs a contract of sale to purchase another home undertakes substantial financial risks. An experienced real estate attorney with a knowledge of your total circumstances can counsel you so as to reduce, if not virtually eliminate, the risks involved in selling and purchasing another home.

 

Title Closing

Once the Purchaser's mortgage loan has been approved and the title search has been reviewed and approved, the time and place of closing is scheduled.

 

At the closing, the Purchaser signs the necessary mortgage loan documents, pays the balance of the purchase price and receives the deed and all other documents necessary to convey title. The parties also each pay their respective closing costs.

 

In most cases, if both attorneys have properly represented their clients, all of the problems encountered in the purchase or sale of the home should have been resolved prior to the closing and the actual closing itself should proceed smoothly.

 

Selecting the Right Attorney

It is important to select an attorney who, like myself, is experienced with the legal issues that arise in connection with the purchase and sale of real estate.

 

Before entering into the Contract of Sale, I personally discuss the specific details of the transaction with you and review the closing costs involved. By paying close personal attention to your individual needs, I make sure that the Contract of Sale will best protect your interests.

 

Throughout all stages of the transaction, I make myself personally available for consultations so that the closing will be as smooth as possible.

 

After the closing, you will receive a personalized Closing Statement which clearly sets forth all of the transactions that took place at the closing and includes copies of all relevant documents. This Closing Statement will be an invaluable tool in preparing your income tax returns in future years.

 

Throughout the years, I have safely guided many satisfied clients through the various stages in the purchase or sale of their homes. Please call my office to schedule your free consultation.