A real estate attorney can be a valuable partner when buying or selling property. But is one always necessary? Definitely not. Though real estate lawyers can certainly help resolve disputes, navigate complications, or even just provide general guidance, they’re not right for every transaction.
What Does A Real Estate Attorney Do?
Real estate attorneys can assist in a number of capacities, both in the residential space and the commercial one. They help with drafting contracts and legal documents, deal with construction and development issues, and might even attend your closing appointment. One of the most common reasons you’d use a real estate attorney is to draw up a contract or legal document. Attorneys can help you draft:
• Your sales contract/purchase agreement.
• Leases.
• Eviction notices.
• Title documents.
• Mortgage contracts and documents.
• Title and deed transfer documents.
If these items have already been drawn up, they can also help you better understand them, explaining your liabilities, obligations, and other terms of the contract.
In addition to document preparation, a real estate lawyer generally offers the following legal services:
• Negotiations.
• Reviews and due diligence.
• Assistance with building and development projects.
• General litigation.
• Foreclosure proceedings.
• Closings.
• Title and lien searches.
• Deed transfers.
• Resolution of zoning issues.
• Coordination with lenders, title agents, surveyors, and other parties in the transaction.
They can also assist with real estate litigation and disputes, including title or land disputes, enforcement of legal contracts, and more.
Should You Use A Real Estate Lawyer When Buying A Property?
Some states require that an attorney be involved in the sales process (or even at the closing table), while others leave it up to you and your lender.
The states where you’ll most likely need an attorney include:
• Connecticut.
• Delaware.
• Georgia.
• Massachusetts.
• New York.
• North Carolina.
• South Carolina.
But real state laws vary and are constantly in flux. Be sure to check your local laws or ask your real estate agent for additional guidance. If your state doesn’t outright require an attorney, that doesn’t mean one wouldn’t still be helpful. Here are a few scenarios when you might consider hiring legal help:
• You’re building or buying real estate for your business.
• You’re having issues with your landlord or tenant.
• You’re buying or selling a commercial property with existing tenants.
• You need help understanding your sales contract or other agreement.
• Your development project is up against land, title, or environmental issues.
• You want help negotiating a better deal.
• You need assistance with foreclosure proceedings.
• You’re buying a property that has physical issues, is in a hazard-prone area, or has lead, asbestos, or environmental toxins.
• You want to better understand the liabilities a real estate transaction or property might present.
• You’re buying from another state or country and aren’t sure of the local laws.
• You’re buying a bank-owned property or property with liens against it.
There’s a chance your lender may require an attorney to ensure your property’s title is clean and clear. Ask your lender if this will be required or check your loan estimate to see if an attorney’s fee is quoted there.
Finding A Real Estate Attorney
If you’ve decided you want the help of a real estate attorney, ask your lender, title company, or real estate agent for a referral. You can also ask for recommendations from friends and loved ones. Before hiring a lawyer, schedule a consultation to see if it’s the right fit. Do they have experience with the type of transaction or issue you’re dealing with? How does their fee structure work, and when is payment required? You should also make sure to choose an attorney in the right part of the industry, as residential and commercial real estate transactions are very different. If your state doesn’t require a real estate attorney, there’s a good chance you can proceed without one. As long as you choose an experienced real estate agent, they should be able to guide you through most of your real estate transaction. If you come across any legal issues or disputes, though, a trained attorney is always your best defense.
Why an Out of State Investor Should Hire an Attorney
The purchase or sale of real estate, whether it is a single family house, a multi-family apartment building, vacant land or a commercial building, is an intricate process that begins with the signing of a contract and ends when the keys and the title to the property are transferred to the purchaser. Although Utah law does not require that a real estate attorney be involved to assist with the steps that occur between the time contracting and closing, hiring a local real estate attorney to assist you with the purchase or sale of real estate in Utah is almost always a wise decision and is money well-spent. Considering the fact that the other party to the transaction will almost always have a local real attorney representing them, I want to highlight a few of the reasons why you should always follow suit and hire a local real estate attorney in Utah when you are involved in a real estate transaction.
What Benefit Does Hiring An Attorney Provide
• Someone Represents You Legally
• Accurate Information Is Being Shared: Having a local real estate attorney in your corner, who understands the intricacies of the local real estate market and who is and has been consistently involved in local real estate investor/investment transactions, will increase the likelihood that when false/misleading/inaccurate information is provided, that this misinformation it is caught, called out and corrected in advance of closing. In addition, having a local real estate attorney involved on your side will increase the likelihood that all of the pertinent, material and available information is provided to you so that you can perform a complete due diligence review. The important information you need as a real estate investor includes, but may not be limited to, the following:
Correct tenant lease and application information
Update on subsidized housing inspections and status
Verification of any local administrative or building codes
Correction of any inspection issues
All contract matters are being documented by your attorney in case they need to be referenced post-closing
• Real estate attorneys decrease the likelihood of post-closing litigation: Local real estate attorneys typically charge small (and reasonable) flat fees, to represent you from the time you go under contract until the time of closing. Litigation attorneys tend to be much more expensive, charging several hundred dollars per hour and requesting a several thousand dollar up front retainer fee to begin working on the matter. Hiring a local real estate attorney will significantly reduce the likelihood of post-closing disputes. Disputes can arise from ambiguities or mistakes in the purchase and sale contract, issues with the condition or state of “title” or problems with the condition of the property after legal ownership has passed to the purchaser. A local real estate attorney will review the contract to make sure that the paragraphs and the terms therein are clear, understandable, customary and otherwise problem free, that any issues with title to the property are discovered and addressed prior to closing, that any agreements regarding repairs to the property are properly memorialized in writing, and that all legally required pre-closing disclosures are properly made. Expensive post-closing litigation is far less likely if both sides hire local real estate attorneys from the time that the contract is signed until the time the closing occurs. Since post-closing litigation is expensive, time consuming and unpredictable (in terms of the likelihood that a favorable result can be obtained) many times the purchaser just ends up having to accept/assume the fact that mistakes were made and the resulting unforeseen financial responsibility and move on.
• Real estate attorneys will save you incredible amounts of time: In a real estate transaction, both the seller and the purchaser have several obligations that must be met before closing. In addition to disclosures, communications must be made initially and continuously. Ongoing communication between the parties is the recipe for a “smooth closing” and is required to satisfy local municipal requirements or to satisfy the multitude of requests made by the lenders, homeowners’ associations, title companies and the county tax assessor who are associated with the property and the transaction as a whole. This is a time-intensive process for even experienced local real estate attorneys who deal with these steps on a regular, if not daily, basis. Even if you can complete these tasks flawlessly and timely without the assistance of an attorney, it will be extremely time consuming for you. More likely, without the assistance of a local real estate attorney, mistakes that are ordinarily preventable will occur and those mistakes often cause the closing to be postponed for several months or the deal to fall through entirely.
• Real estate attorneys make sure that title passes cleanly from the seller to the buyer: One of the key roles that local real estate attorneys play in a real estate transaction is they act as a title agent. The title agent works with the title company to ensure that the seller actually has the right to pass full legal ownership (“title”) of the property to the purchaser. If there are any impediments to this right, a title agent will identify them and work with the parties and the title company to resolve these issues before the transaction is set for closing. In addition to the contract, disclosures, and the due diligence materials provided by the Seller, the purchaser’s attorney typically reviews the plat of survey depicting the property and the deed that is given to the purchaser at closing to ensure that the purchaser actually receives full legal ownership to property that the purchaser has contracted to purchase. This is highly technical work on both sides, and it is extremely important in order to protect the interests of both parties. Keep in mind, because attorneys only represent one party in a real estate transaction, you cannot assume that everything is as it should be/good/OK simply because another party to a real estate transaction has hired a local real estate attorney to assist them.
What Real Estate Law Covers
Real estate law encompasses the purchase and sale of real property, meaning land and any structure on it. It also covers legal issues related to anything that is attached to the property or structures, such as appliances and fixtures. Lawyers who specialize in this branch of the legal system ensure that proper procedures are followed during the acquisition or sale of property. They also may be concerned with the use of property. Real estate law covers deeds, property taxes, estate planning, zoning, and titles. All of these laws vary by state and by local government. Attorneys must be licensed to practice in the state where the transaction is taking place and must be up to date on any local or state changes that could affect a transaction.
Real Estate Attorney’s Responsibilities
A real estate attorney is equipped to prepare and review documents relating to real estate such as purchase agreements, mortgage documents, title documents, and transfer documents. A real estate attorney hired to handle a transaction will always attend the closing with the buyer. This is when the money is paid and the title is transferred. The attorney is there to ensure that the transfer is legal, binding, and in the best interests of the client. During the purchase of a property, the real estate attorney and staff might prepare documents, write title insurance policies, complete title searches on the property, and handle the transfer of funds for the purchase. If the purchase is being financed, the attorney is responsible for paperwork such as the federal HUD-1 Form and related transfer of funds documentation for the buyer’s lender. In the case of a real estate dispute, such as chain of title, lot line problems, or other issues involving contracts, the attorney will resolve the problem. A real estate attorney may also provide legal representation for either a buyer or a seller when a dispute winds up in a courtroom. The real estate attorney obtains facts from both sides of the dispute and tries to bring them to a resolution. This may mean hiring a surveyor or title company to work through some of the details.
Like any lawyer, a real estate lawyer has earned a law degree, which typically takes three years of study for a full-time student, and has passed the state bar exam administered by the state in which he or she practices. Training for a specialization like real estate law may begin with elective courses and internships during law school and may continue afterward for certification in real estate law.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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