The process of buying or selling your home is quite complex, so you are fortunate to have a real estate professional to guide you through some of the process. However, in some states, you are required to have an attorney complete the real estate closing transaction; in some jurisdictions, you need a lawyer to be involved with the preparation and execution of the documents. And regardless of where you live, there are a variety of reasons you might want to consider retaining a lawyer to represent your interests in the closing. Here is some general information to give you some background on the process.
States Where an Attorney is Required for a Real Estate Closing:
Several states have laws on the books mandating the physical presence of an attorney or other types of involvement at real estate closings, including Alabama, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kansas, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and West Virginia.
This list is subject to change based on newly passed legislation, so you should speak with your real estate professional for exact requirements. In addition to a lawyer, you will likely need to retain the services of a notary public because the transaction involves real estate. Many attorneys have notary commissions or have a notary public on staff, so check with your agent to see if you need to hire one.
Involvement of Non-Attorney Consultants & Other Entities:
Many states not listed above do regulate real estate closings as they pertain to the participation of non-legal professionals. One or more of the following individuals/entities may be involved in the transaction:
Title Company or Agent: This entity is responsible for ensuring that the deed you receive as a buyer has no defects which might indicate that someone else has an interest in the property. The title company or agent does an examination of the chain of title as the real estate has changed hands over time. This person will uncover any mortgages, liens, judgments, or unpaid taxes that may need to be corrected in order to deliver a clean title to a buyer.
Escrow Company or Agent: During the real estate closing, there may be an escrow company or agent who has the fiduciary responsibility to handle the transfer of real estate from the seller to the buyer. The agent collects all documents from each party and makes sure that all provisions are complied with by the seller and buyer. In a sense, this person represents both parties to the real estate closing.
Lender: In some states, it’s possible for the homeowner’s lender to handle a real estate closing.
Real Estate Agent/Broker: The seller’s real estate agent may also conduct the closing in some states. Here, it’s important for both parties to note that the agent represents the seller and doesn’t act on behalf of the buyer.
Notary Public: While a notary public wouldn’t necessarily handle the close, the presence of a notary service is necessary in most states to witness the execution of all documents.
Reasons to Consider a Lawyer to Represent You in a Real Estate Closing:
Even if not required in your state, you may want to retain an attorney to act on your behalf in a real estate closing. These professionals can prepare or review all documents and ensure that your rights in the transaction are adequately protected. If any legal issues arise during the process, your attorney can answer any questions or address any issues related to the terms and conditions of the closing documents.
The requirements of a real estate closing, such as preparation, execution, and notarization of documents, can be difficult to understand if you do not have a legal or real estate background. Plus, in the handful of states where an attorney is required to complete closing, you do not have a choice on how to proceed. It’s smart to consult with professionals to help guide you and answer any questions you may have.
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