July 28, 2016
When To Hire A Real Estate Attorney?
The buying and selling of real estate is one of those areas where you have many experts working to help you out at different points in the process. A common though process that people may have is do I need an attorney to help me with my real estate transaction. The answer is that it does not hurt to start a conversation with an attorney so that when the need does pop up the your attorney is up to speed and ready to help you.
Even where you have a transaction that is a simple purchase of a home where you have a real estate agent working for you, the seller has a real estate agent working for them and you will be closing the sale through a local title company an attorney can protect your interests by looking at things from your particular legal perspective. That is not something you will get from anyone else but your attorney who is familiar with your situation. There are other unique situations where having a real estate attorney help you out will be in your best interests as noted below.
For Sale By Owner
If you are selling your home For Sale By Owner (FSBO) then it is advisable that you contact a real estate attorney prior to your listing your home and have your attorney review any purchase offers that come to you from buyers. A purchase offer can be a simple document that offers to purchase a home for a certain amount of money. Once signed by both the buyers and sellers the written purchase offer becomes a contract and is a legally binding document on both the seller and the buyer. Problems do arise where the buyers and sellers agreed on one thing verbally but failed to capture it all in writing. By having an attorney check to make sure what is being agreed to with the purchase offer is in the contract you reduce the chance of a lawsuit ruining your chances of completing the deal.
Failure to add language into a FSBO purchase offer with regards to inspecting the property for defects and a requirement that the property be appraised at or higher than the amount being loaned can leave the buyer in a bad situation. The language used by real estate agents in their board approved documents contains all the required terms that provide for inspections, appraisal requirements and more. By attempting to create a purchase offer document yourself or by using canned language you found on a website somewhere you might be setting yourself up for bigtime failure.
Websites on the internet providing documents to help you purchase a home don’t always have the required language that is required local laws. By trying to save money and using canned purchase offer language you could be missing crucial requirements that prevent you from using an inspection as a reason to walk away from a home purchase. You may have an inspection performed on the home you are about to purchase but when you find out the foundation has major issues, if your purchase offer language was not correctly drafted you may still find yourself in a contract to purchase that home with the problems and all. Certainly you don’t have to close on the home, but the home seller can also turn around and sue you for failing to complete the terms of the contract. By sitting down with an attorney beforehand and discussing your goals and desires, you can have your attorney draw up a properly prepared purchase offer that protects you in the event there is something wrong with the home or with the purchase process.
Going through a divorce is a process that may or may not be complicated depending on custody and asset division issues if there are any. Add into the divorce process the need to sell a house then things can get more complicated. Especially where there may be equity in the house or where both spouses are on the mortgage the need for a real estate attorney to assist in the process and represent each spouse best interests makes sense. If one has an attorney representing them the other spouse should also have their own legal representation in order to make sure their interests are adequately protected.
During a divorce emotions can be elevated and as a result clouds ones judgement as how best to proceed with regards to selling a home. One party may wish to keep the home but may not necessarily be able to afford the mortgage whereas the other spouse wishes to sell. If a mutual agreement is not happening between the spouses on how to deal with the home then the attorneys for each spouse can try and negotiate an agreement or they can request a judge make a determination. Either way by having an attorney help you with your real estate issue while going through a divorce you can rest easier knowing there is someone looking out for your interests.
Post Sale Problems
You have closed on your home purchase and now are encountering problems with your home. Some problems may just be routine problems that are commonly associated with home ownership. Clogged toilets and slow drains are nothing really to be concerned over and are considered something the new buyer should be able to take care of when they purchase a home. On the other hand if during a heavy rain storm you discover the sewer backs up into the basement and that this was in fact known to the sellers but they did not disclose the matter to you, you may have grounds for suing the sellers for the failure to disclose.
The facts and circumstances surrounding undisclosed home problem need to be explored further in order to determine if there is legal liability. If you as the buyers did not know about the problems and would not be able to learn of the problems when you were getting ready to buy the home this leaves it upon the sellers to disclose if they know about the issue. The seller’s failure to disclose a material fact that impacts the value of the home means the buyers can sue the sellers.
The types of seller failure to disclose issues you should discuss with a real estate attorney include mold contamination, water damage issues, foundation and structural issues, roof issues, and more. Especially where the problems are major and should have been disclosed but were not then sellers can be held liable for their lack of disclosure. Even worse a court can order punitive damages be paid by the sellers for their failure to disclose or a court could undo the purchase transaction and force the sellers to take back the home and return all monies to the buyers.
Commercial Real Estate Transactions
Whether you are selling, buying or leasing commercial space the protections afforded sellers, buyers and tenants in the commercial real estate area are much less than those found in residential real estate transactions. Having an expert real estate attorney review leases or purchase agreements for you ensures you are not unknowingly giving up rights or becoming obligated for something more than you intend to. Also by having an attorney relationship developed ahead of time should the need arise for a quick legal review due to time tight frames involved your attorney should be able to provide you input pretty quickly. Whereas on the other hand if you wait until the last minute to consult with an attorney you have never met about an offer that expires soon you may not get the priority existing clients are offered.
With the large sums of money involved in real estate it is always best to discuss your plans and needs with a real estate attorney ahead of time. By establishing a relationship with your real estate attorney before an immediate need arises you are ensuring that your attorney knows your goals and can step in when needed to deliver timely input. The attorneys at Finney Law Firm are ready to help you with your real estate and other needs, contact us today so we can help you accomplish your goals.
Do you have any questions about the services above?
Paul Sian is a licensed attorney in the States of Ohio and Michigan. If you feel you need the services of an attorney or have questions about any of the services named above feel free to contact me at firstname.lastname@example.org or via phone at 513-943-5668. Connect with me on Twitter and Facebook.