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Frequently Asked Questions

Why Do I Need an Attorney for My Real Estate Transaction?

Real estate transactions can be very complex, with the potential of something going wrong at every step of the process. And once you sign the contract, you are bound by its conditions. A home sale involves several participants besides the home purchasers and sellers (the realtor, lender, appraiser, and more). Each party will be looking out for their own interests and not necessarily yours. Be sure you have a real estate attorney with you to review the contract before you sign it. Protect your investment by having an attorney represent you throughout the transaction and assist you through this often convoluted and highly-complicated process.

An attorney will negotiate any contracts, see that all the paperwork is in order, ensure clear title to the property, explain the tax ramifications of your purchase or sale, work with you to obtain financing, make sure that you understand what everything means, and much more. Your attorney serves as your advocate and will protect you in what is probably the largest financial transaction you will ever make.

Nine reasons to have your attorney at the closing table

"Home purchasers and sellers are likely to confront a number of complex issues that can be resolved only by an experienced real estate attorney," said Frank Giorgio, president of TitleLand Agency, Inc. (TGI). "Buying a home is the most significant financial commitment most people will make," he said. "Because so much is at stake, we believe an attorney should be involved in the process from the beginning."

Participants in the real estate process often include a real estate sales person or two, a lender, an appraiser, an inspector and a title insurance company, and possibly a builder and contractor. "With so many players who have competing interests, it's critical to engage counsel before you proceed into what will most assuredly be a highly-complicated transaction," said Giorgio. "You need the advice of an independent party who is skilled in the process and who has an undivided duty of loyalty to you."

An attorney can also help save on settlement costs. "Although in some states, such as California, escrow agents are employed to handle residential real estate transactions, the fact is that in states where lawyers represent buyers and sellers, settlement costs, including attorney's fees, are generally lower," Giorgio noted. "For the most part, lawyers in the greater New York market charge a modest fee to represent a real estate consumer from contract to closing. These costs are considerably less than the 'escrow fees' charged in other states for paper shuffling and no advocacy."

Among the wide range of functions provided by an attorney to smooth the home buying and selling process are these nine:

  • Negotiates the specific terms of the contract. "This is the most critical stage of the negotiating process because once a contract is signed, the prospective buyer is bound by its terms. To proceed without the advice and counsel of an attorney is like walking into a maze blindfolded," stated Giorgio.

    Another problem might arise if the buyer signs a contract with an attorney approval rider, but allows that contingency to expire. A qualified real estate attorney will explain the terms of the contract and suggest changes to protect the buyer's investment and enjoyment of the home.

  • Ensures that the owner has clear title to the house. The attorney's function here is to obtain a title search and evaluate the status of the title. If liens or other defects are discovered, the attorney will remediate them through appropriate action. The attorney will also advise the consumer about the importance of obtaining title insurance, which will protect the home buyer from mistakes in the public record, forged documents, or any liens against the property that are not discovered during the title search.

  • Evaluates financing options. An experienced real estate attorney can assist a consumer in analyzing the relative merits of various types of financing. They can also explain nuances of the various products.

  • Explains tax consequences. Tax laws are extremely complicated, and the consequences of not understanding those that relate to home ownership can be financially devastating. In addition to property taxes, home buyers will need information about the income, estate, and gift tax consequences of purchasing a residence.

  • Navigates the paper maze. Closings, which were once a straightforward transaction involving half a dozen documents, have become extraordinarily complex involving the generation and execution of as many as 50 documents. The number of pieces of paper involved isn't the only concern, either. Many of these documents have a substantial impact on the rights and responsibilities of the consumer, as well as the others involved in the process.

  • Advocates for the consumer every step of the way. The real estate attorney will ensure that all parties comply with the terms of the listing agreement and real estate sales contract. Loyalty to their clients is paramount to all other considerations. This loyalty often produces thousands of dollars in savings to a client.

  • Keeps the deal on track. Attorneys will keep the process on schedule by monitoring contingency deadlines, ensuring that the home is inspected and defects disclosed in a timely manner, and assuring that the consumer is able to take possession of the house on the date specified in the contract. They will also negotiate any disputes that occur.

  • Makes sure everyone plays by the rules. A real estate attorney can circumvent future problems of home ownership by ascertaining that all existing laws have been followed. For example, in the case of new construction, he can ensure that a contractor does not place a fence partially on a neighbor's property. For both new and existing constructions, he can determine that the house meets zoning and subdivision ordinances, including the size of the lot and drainage requirements.

    The attorney can also address local restrictions that might come into play once a consumer moves into a house, such as whether home-based businesses are allowed in that area, or if satellite dishes are allowed.

  • Serves as an advocate at the closing. A lawyer's expertise is needed at virtually every stage of the home-buying process, but is particularly crucial at the closing. Giorgio notes, "The attorney will explain each document to the consumer, review the closing statement and tell the buyer exactly where the money is going, as well as negotiate any last minute situations or requests."

Don't go into your transaction without representation. Need an attorney? Order a list of attorneys in your area.