Buyers and sellers should never use the same attorney, nor should they use the same real estate agents; the potential for conflicts of interest are too great.
When you’re selling your home, be it a house or a condo, you’re selling what may be the most valuable asset you’ve ever owned. Saying that you want everything to go smoothly might be the understatement of the year – being mired in legal problems could create ongoing uncertainty in your cash flow and living situation.
Now, should is very different than must, and while there are a lot of situations in which you should probably get a lawyer, not all scenarios a seller might find themselves in require one. At the time of writing this, the following states require you to have a real estate attorney at closing: Alabama, Connecticut, Delaware, 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.
Note that if you’re not in these states, it’s up to you whether or not you get a real estate attorney. You should also note that this list may very well change; this article was written on July 14th, 2020.
Real estate attorneys can certainly help smooth over the legal paperwork inherent in any large-scale transaction. They can prepare and review transfer documents, purchase agreements, and more.
Here’s the thing about all of that – we, as a society, have found very efficient ways of eliminating a lot of that paperwork. Purchase agreements have largely become boilerplate; they are hyper-standardized. That means real estate agents are usually more than proficient at getting the legal agreements drawn up.
You might be breathing a sigh of relief right now, or you might be thinking to yourself “I don’t trust boilerplate”. Those of you in the former camp may not end up hiring a real estate attorney (though it still might be in your best interest; read on).
Those in the latter camp could benefit from having an attorney go over the purchase agreement and other documents for you. They can explain any terms or clauses that don’t make sense. What’s more, they might suggest changes to the agreement depending on your particular situation. Speculating too much on those here might be a waste – there are many different corner cases you might conceive of. That said, going into some of the more common corner cases should be useful.
Let’s say you’re selling a home on behalf of someone’s estate. An attorney will be more or less essential in order to help guide you through the probate process, and explain the proper way to distribute funds appropriately to the beneficiaries of the estate. There is a lot of legal paperwork to do and there are potential conflicts that can arise when acting as an estate’s executor.
Consulting an attorney may also be helpful in a number of particular financial situations. You might, for example, contact a mortgage lawyer if you’re worried about penalties related to breaking your mortgage. Attorneys can also be helpful in circumstances where there have been liens placed on properties you’ve owned in the past, or on the property you’re trying to sell.
An attorney can also be useful when you’re selling a house or condo that is in a state of disrepair. There are potential liability concerns that can arise, so it may be important for you to conduct a thorough inspection of the property in order to disclose any possible hazards. A lawyer can help you create the purchase agreement in these circumstances, as clauses related to certain types of liability may be excluded from boilerplate contracts. Buyers who purchase homes in distress may have a hard time finding the home insurance required for most mortgages – things like knob and tube wiring may have to be addressed before the home can be sold.
Barring these and other considerations that could mean a boilerplate contract isn’t sufficient for your transaction, you may opt to get a real estate attorney simply because getting one makes you more comfortable. Compared to the amount of money you’re likely to get from selling your property, the costs of a real estate attorney are often so low they’re almost negligible – their work will almost certainly cost you far less than the commission your real estate agent will take.
This article has been written from the perspective of a prospective seller – note that there are many circumstances in which buyers should also have attorneys work with them before closing the deal. Buyers and sellers should never use the same attorney, nor should they use the same real estate agents; the potential for conflicts of interest are too great.