"Why do I need a lawyer?" many a do-it-yourself-oriented homebuyer often asks. "Can't my real estate agent see me through?" Well, no. Although using the services of an attorney can easily add several thousand dollars to the cost of a real estate transaction, it's often money well spent. Read on to find out how a real estate attorney will help you close the deal and avoid the pitfalls that may end up costing a lot of money.
- It's worth it to spend money on a real estate attorney.
- Attorneys make sure all paperwork is properly drawn up and filed with the authorities.
- Attorneys do title searches and can negotiate should a search uncover a problem.
- In a real estate transaction, sellers, as well as buyers, should be represented by lawyers to safeguard their rights and watch their interests.
While most individuals have the ability to negotiate face-to-face with another party, the terms of the deal must be properly memorialized in a contract for them to be legally binding. Attorneys can do that by not only negotiating on your behalf but also making sure that the contract adheres to all state laws, as well as addressing any specific issues that might affect the future use of the property.
For example, in many states, the law stipulates that the buyer and the seller have three days to review a real estate contract signed in conjunction with a realtor before it becomes legally binding. Some homebuyers/sellers aren't aware of this. A lawyer will not only make the client aware of it, but will also review the contract for any legal glitches, make any necessary changes to it, and insert any contingencies that you might have.
Another vital service that attorneys perform is called a title search. Its purpose is to make sure that the property being sold is free of any encumbrances, such as liens or judgments. The outcome of the title search is extremely important because it reveals whether the seller has the legal right to sell the property in question. Although anyone can do a title search, especially in this digital age, an attorney will be able to accomplish it much faster, and often with less cost: If they don't do it themselves, they'll often have working relationships with title search companies that specialize in this service.
If the search uncovers something problematic, your attorney can counsel you on how to proceed. Suppose a title search reveals that the seller must first pay a lien or outstanding court judgment before their home can legally be sold. A lawyer might negotiate a price reduction on the property—a deal sweetener to compensate you, the buyer, for the delay. The lawyer may also provide the seller with suggestions or sources for financing so that they can satisfy those claims. Attorneys will also be able to secure proofs that those judgments and/or liens have been satisfied. This is important if you as the new owner ever plan to obtain a mortgage or loan against the property.
When one or more parties are corporations, trusts or partnerships, the contract preparation and the ensuing negotiations are complex. An attorney understands these different types of business arrangements and their legal boundaries within your state's law. As such, the attorney will ensure that the contract is consistent with the law, but also that the terms of the deal in no way violate the partnership's, trust's, or corporation's charter agreements.
The average annual salary for a real estate lawyer, according to LawyerEdu.org
Real estate deeds often need to be filed at the county and state levels. An attorney will be able to do this quickly and efficiently. Also, if the transaction involves property in an area where certain types of construction might not be allowed, an attorney will be able to navigate the maze of state regulations so that you may complete the transaction.
If the transaction revolves around commercial property, securing an attorney is even more important. The attorney will be able to cut through government red tape to obtain your tax identification number from the state, as well as establish your corporation or sole proprietorship as a valid business entity for state tax purposes. An attorney may also secure your actual business license through the municipality as well.
Failing to file the appropriate documents at the state or the county level can result in such dire consequences as:
- If a deed is not properly transferred, it could cause a variety of income and/or estate taxes to be levied on the buyer and/or the seller.
- If building permits are not filed on wetlands, certain structures may have to be rebuilt, or owners may incur fines.
- If the transaction is commercial in nature and the business is not properly registered at the state level, the company may not receive its taxpayer identification number. Should this happen, the business might be forced to close until it secures that information.
Sellers Need Attorneys Too
If you're selling a property, having an attorney represent your interests isn't a legal requirement. But without one, you increase your chances of being sued by the opposing party for failure to disclose certain information. That is because an attorney's job is to review the home inspection and make certain that all relevant facts about the property (as well as any judgments or defects) are made known to the other party.
If the opposing party is a corporation or a partnership and the transaction is improperly completed for any reason—such as not clearing title to the property, failing to disclose certain defects, or violating a corporate charter—the entity may sue you, and its partners may individually sue you as well. While having a lawyer will not insulate you entirely from such litigation, obtaining legal counsel will certainly mitigate your risk, as the attorney will be much more likely to secure a clear title and make the appropriate disclosures.
The Bottom Line
Having legal counsel makes good business sense because of the complexities that come with real estate transactions. An experienced, competent real estate attorney can help to protect your interests and ensure that your process adheres to the applicable rules of your state and municipality—and that the closing occurs to the satisfaction of all involved.