THE IMPORTANCE OF A REAL ESTATE LAWYER IN A REAL ESTATE TRANSACTION

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A Lawyers involvement in residential house sales began dwindling in the 1980s with the advent of HUD regulations requiring title insurance for mortgages, secured by residential properties, which were being bundled and sold on the secondary market. Lawyers lost most of the title examination business to title insurance companies and consequently began to lose contact with consumers.

In 2005, lawyers are rarely involved in residential transactions – with the exception of 8 States that require an attorney’s involvement by law.

Over that same time period, residential transactions have become increasingly complicated, to the point where most lawyers do not know how to represent residential clients. Never have so many disclosures been required. Unfortunately, lawyers have abdicated our involvement to real estate agents and title companies, neither of which is able to give legal advice to buyers or sellers.

Lawyers skilled in residential representation believe that lawyers should be involved in every transaction, in order to prevent unnecessary expense, and to guide the client through complicated legal situations, and to keep the client out of a future, expensive, lawsuit.

This step-by-step guide is intended to help lawyers get back to serving the needs of residential buyers and sellers.

WHY A LAWYERS INVOLVEMENT IS NECESSARY FOR RESIDENTIAL TRANSACTIONS

A. Large amount of money. For most people, a house is the most expensive item they will buy.

B. High degree of complexity in the sales contract.

C. Four separate contracts. Most transactions will involve a listing contract, between client and real estate broker, a purchase agreement, between client and buyer/seller, a mortgage, between client and lender, and title insurance between client and title insurer.

D. Conflicting interests (broker, lender, title company). The client does not have the knowledge or experience to represent his or her own interests . . . only the lawyer can fill that role.

E. Emotionally draining. Lists of stressful events always have buying or selling a house near the top. Parties represented by a competent lawyer will enjoy more peace of mind and avoid improvident spur-of-the-moment decisions.

LAWYERS MUST PROVIDE COMPETENT REPRESENTATION

A. Myth: Filling in blanks on a preprinted form does not require legal decisions. Reality:

There is no simple residential transaction. Many federal and state real property consumer protection statutes pertain only to residential property and transactions. Many municipalities impose additional requirements. Dual agency is rarely an issue with commercial sales of property, but very often is with residential.

B. Competency required by ethics code. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation, reasonably necessary for representation.

Industry practices, unchallenged due to the absence of lawyers, have developed which operate to the detriment of the client.

HOW TO JUSTIFY ATTORNEY FEE’S

A. Myth: I cannot afford a lawyer. Reality: Buyer and seller can hardly afford to not have a lawyer. The purchase agreement requires decisions on issues of buyer’s and seller’s respective responsibilities, liabilities, financial obligations, and timing. Frequently other transactions, such as a purchase by the seller or a sale by the buyer, will be affected by the particular purchase agreement. The caution on the document to seek legal advice or to consult a lawyer is good advice.

B. Lawyer services often save the client money.

1. Elimination of unwarranted costs.

a. A lawyer can save money for a client starting with the listing agreement. The lawyer advises the client regarding an appropriate commission to be charged for the level of service to be required or to be provided by the real estate agent, and the anticipated difficulty of the listing and selling services. Some homes are as good as sold the instant they hit the
market. Some homes are in fact sold before they hit the market. Most home sellers are not knowledgeable enough to understand and negotiate these matters.

b. A properly negotiated purchase agreement will appropriately and fairly allocate responsibility for real estate taxes, special assessments, deferred taxes, abstracting, and costs of closing.

c. Myth: Since the settlement statement is a government form, the expenses shown on it are accurate. Reality: Closing expenses on the HUD-1 settlement statement are frequently subject to error in either the amount of the expense properly chargeable or the allocation of an expense.

2. Avoidance of future litigation.

a. The lawyer can provide invaluable counsel for the seller or buyer regarding the traps that can arise from the disclosure requirements in residential real estate transactions. The lawyer can advise regarding what can realistically be expected from the disclosure, as well as when disclosure should not be made. Real estate agents may require unnecessary representations to enhance the marketability of the property. Such representations could lead to future claims against the seller, only, due to the common practice of requiring the seller to indemnify the listing agent and broker.

b. The lawyer can assist the seller or buyer in enforcing the purchase agreement or canceling the purchase agreement.

c. Title insurance is nearly universal in the current mortgage financing universe. The average residential buyer or seller is not sophisticated enough and informed enough to understand the title insurance policy and what is given and what is taken away and what are the policy’s limitations and benefits. In a typical transaction, the buyer does not see the title policy until after its issuance, if then.

BUYERS AND SELLERS – HIRE A LAWYER !!!