Q: What is the role of the attorney?

A: The attorney that you choose to represent you in the purchase of your home is one of the most important decisions you will make in the process of purchasing your home. While your real estate salesperson or broker will work with you to make a decision on which home may satisfy your particular needs, your attorney is the only party who will be working to protect you and guide you in all of the legal aspects of purchasing your home.

From the perspective of a seller, the attorney guides the seller in the legal aspects of selling their home including assisting in gathering and preparing the legal documents to transfer title to the purchaser. The seller's attorney will instruct the seller to gather certain existing title documents, such as the deed, survey, title search, mortgage statements and tax receipts. The title search and survey will be updated in accordance with local custom and requirements of the contract of sale. These documents are then forwarded to the purchaser's attorney in preparation for closing.

In representing a prospective purchaser or seller, an attorney performs the following functions:

(a) Reviews and discusses the terms and conditions of the contract with the client and provides an appropriate approval of the contract;

(b) Oversees the transaction and makes certain that the client is complying with all of the terms and conditions of the contract;

(c) As seller's attorney, orders updating of the title search and survey,

(d) As purchaser's attorney, examines title curatives and requires title so that good and marketable title is conveyed to the purchaser;

(e) Coordinates the closing of title between the parties and the purchaser's lender.

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Q: What are the benefits of owning a home?

A: Owning a home is like an investment and it has many benefits. When you make a mortgage payment, you are building equity in your home. By owning a home, you qualify for certain real property tax breaks and you are able to deduct certain expenses, such as mortgage interest and real estate taxes, on your personal income tax return. The financial responsibilities of owning a home can be great, but given the freedom, stability and security of owning your own home, they are worth it. (Back to Top)

Q: What buyer contingencies should be contained in the Contract of Sale?

A: The Contract of Sale outlines the terms and conditions by which a seller has agreed to sell and a buyer has agreed to buy. In particular, it states the basic responsibilities of both the seller and the buyer. Once the Contract is signed by both parties, they are bound to those terms and conditions. The buyer should require that the Contract contain three essential contingencies:

(a) The Contract of Sale should be subject to the purchaser obtaining a satisfactory inspection by a licensed home inspector. In the event there are issues with the condition of the property, the purchaser can request that the seller repair or correct these issues. If the seller refuses to comply, then the purchaser may cancel the contract.

(b) Almost every Contract is contingent upon the purchaser obtaining a written mortgage commitment from a lender. Usually, a purchaser has between 30 and 45 days to obtain the loan commitment. A purchaser must act in good faith, promptly apply for the mortgage within the time period specified in the Contract, and fully cooperate with the lender's requirements. If the purchaser cannot obtain a mortgage commitment within the period specified in the Contract, then either party may cancel the Contract and the deposit on the Contract is returned to the purchaser.

(c) A seller must be able to transfer good and marketable title to the property. The seller must transfer title free and clear of all judgments, mortgages and other liens which may exist against the property. If the seller cannot convey good title, then the purchaser may cancel the contract and obtain a return of his/her deposit. (Back to Top)

Q: Do I need a home inspection and should I be present during the inspection?

A: A home inspector reviews the structure, construction and mechanical systems of the house and will make you aware of the condition of the systems and of any necessary repairs. Generally, an inspector checks the electrical system, plumbing and waste disposal, the water heater, insulation and ventilation, the heating and air conditioning system, the foundation, doors, windows, ceilings, walls, floors and roof. With a home inspection contingency in your Contract, if serious problems are found, you will have the ability to renegotiate the Contract based on repair costs that are needed or you may cancel the Contract.

It is not required, but it is a good idea, to be present for the inspection. The inspector will be able to point out various aspects of the house and their condition. He will be able to answer questions about problem areas and suggest general maintenance for the property. (Back to Top)

Q: What items are included with the sale of the house?

A: Generally, the Contract of Sale specifically lists the included items that are sold with the house. Those items typically are physically attached to the structure of the property. If the items are free standing, then they are typically not included in the sale. Certain items can be specifically negotiated to be included in the sale. Those provisions of the Contract should be reviewed carefully and you should pay careful attention to the included items when you make your final inspection of the home. (Back to Top)

Q: What is a title search and survey?

A: The title search, or an abstract of title, is a written record of all the recorded documents in the County Clerk's Office that relate to the parcel of land that your house is located on. The survey is a map of the land prepared by a licensed land surveyor showing the location of all structures, including structures of adjacent properties located along the boundary lines of your property. The purchaser's attorney will examine these documents to determine if the title is good and marketable. These documents reveal the state of the seller's title and will guide the seller's attorney in preparing the necessary documents to convey title and to cure any issues on the title. (Back to Top)

Q: Do I have the right to inspect the property prior to completing the purchase?

A: Under the terms of the Contract of Sale, the seller is generally required to keep the property in the same condition as it was when the Contract was signed. A buyer is usually given the opportunity to perform a final inspection to check to make sure that the property is in the same condition. The final inspection is typically done a day or two before the scheduled closing date. If any damage has occurred to the property between the signing of the Contract and the final inspection, you should immediately advise your attorney. (Back to Top)

Q: What should I do once a closing is scheduled?

A: Once a closing date has been scheduled, you should contact your realtor to schedule a final inspection of the property. You should make arrangements to have your homeowner's insurance in effect as of the date of closing. Also, you will need to contact all of the utility companies to transfer the accounts into your name. Finally, your attorney will instruct you on the amount that you need to bring to closing and how those amounts need to be made payable. (Back to Top)

Q: Where and when will my closing occur and do I need to be present?

A: The location of your closing is generally determined by local custom. In some areas, the closing occurs at one of the attorney's office or at the County Clerk's Office. Typically, the closing date in the Contract of Sale is not a definite date but is only a "target" date. A closing is generally scheduled once the purchaser's mortgage has been cleared to close by the lender. Your attorney will let you know the exact date and location of your closing as soon as it has been scheduled.

Ordinarily, a purchaser must be present at the closing to sign the loan documents. If you are unable to be present, you may be able to give another person a power of attorney to sign the documents on your behalf. To do so, you must obtain your lender's consent.

Generally, sellers are not present at the closing since they have previously signed all of the deed documents at their attorney's office. (Back to Top)

Q: What is my role in the home buying process?

A: You don't have to become an expert in property values, mortgages, tax and real estate law, title insurance, escrow, pest control work, and construction techniques in order to play the house buying game well. Instead, you can hire people who've already mastered the skills that you lack. Home buying is a team sport. Your job is to lead and coach the team, not play every position. After you assemble a winning team, your players should give you solid advice so you can make brilliant decisions. Because you probably don't have an unlimited budget, you need to determine which experts are absolutely necessary and which tasks you can handle yourself You are the one who must determine how competent or challenged you feel with the various aspects of the home buying process. Each player brings a different skill into the game. Assemble a great team, and they will guide you through any situation that may arise during your transaction. Keep in mind that good players act as advisors not decision makers. Decision making is your job. After all, it's your money on the line. For a more detailed description of the possible roles on your team, read the section on The Team and the Players below. (Back to Top)

Q: What qualities should I be looking for when selecting an agent?

A: A good agent can be the foundation of your real estate team. An agent can help you find a home that meets your needs, negotiate for that home on your behalf, supervise property inspections, and coordinate the closing. Agents often have useful leads for mortgage loans. A good agent's negotiating skills and knowledge of property values can save you thousands of dollars. All the best agents have certain important qualities in common: They educate you: Your agent knows the buying process and carefully explains each step so that you understand exactly what 's happening at all times. Agents should be patient, not pushy.

* They enable you to make good decisions: Your agent always explains what your options are so that you can make wise decisions regarding your best course of action. They advise you if they think that you should add other experts (property inspectors and so on) to your team.

* They voluntarily limit themselves geographically and by property type: Good agents know that trying to be all things to all people invariably results in mediocre service. Even though real estate laws are the same throughout your state, different areas within the state generally have radically different market conditions, local zoning ordinances, and building code restrictions.

* They have contacts: Folks prefer doing business with people they know, respect, and trust. You can make use of your agent's working relationships with local lenders, property inspectors, lawyers, title officers, insurance agents, government officials, and other real estate agents.

* They have time for you: Success is a two edged sword. An agent who is already working with several other buyers and sellers probably doesn't have enough surplus time to serve you properly. Occasional scheduling conflicts are unavoidable. If, however, you often find your needs being neglected because your agent's time is over committed, get a new agent. (Back to Top)

Q: What is a buyer's agent?

A: This agent works solely for and represents the buyer. A buyer's agent has no fiduciary responsibility to the seller even if the buyer's agent gets a portion of the commission paid by the seller. State laws clearly define the duties for each type of brokerage relationship. States have mandated agency disclosure forms and rules to provide meaningful and timely written disclosure and describe licensee's duties upon termination of a client relationship. As you start communicating with an agent, ask for a clear explanation of your state's current agency regulations. Also request a copy of your agent's company's policy regarding agency so you will know where you stand on these important matters. (Back to Top)

Q: What is a seller's agent?

A: This agent works solely for and represents the seller. A seller's agent has no fiduciary responsibility to the buyer. State laws clearly define the duties for each type of brokerage relationship. States have mandated agency disclosure forms and rules to provide meaningful and timely written disclosure and describe licensee's duties upon termination of a client relationship. As you start communicating with an agent, ask for a clear explanation of your state's current agency regulations. Also request a copy of your agent's company's policy regarding agency so you will know where you stand on these important matters. (Back to Top)

Q: What is a dual agency?

A: One agent may represent both buyer and seller in a real estate transaction, but only if both parties consent. Buyer and seller must sign a dual agency disclosure statement that describes the duties and obligations of the dual agent. A dual agent may not disclose any confidential information that would place one party at an advantage over the other party, and may not advocate or negotiate on behalf of either of the two parties. Most states permit dual agency relationships as long as the agency status is disclosed to both the sellers and the buyers in advance, and both parties agree to it. Undisclosed dual agency, which occurs if the buyer and seller have not been advised about or consented to dual agency, can be used as grounds to have a purchase agreement revoked and could permit the injured parties to seek recovery against the real estate agents. State laws clearly define the duties for each type of brokerage relationship. States have mandated agency disclosure forms and rules to provide meaningful and timely written disclosure and describe licensee's duties upon termination of a client relationship. As you start communicating with an agent, ask for a clear explanation of your state's current agency regulations. Also request a copy of your agents company's policy regarding agency so you will know where you stand on these important matters. (Back to Top)

Q: How do I select an agent to represent me as a buyer?

A: By analyzing agents activity lists, interviewing them and talking to their clients, you can gather the facts you need to make an intelligent decision.

Here are three final considerations to help you select the paragon of virtue that you need on your real estate team:

* Will you be proud having the agent represent you? People who deal with your agent will form opinions of you based on their impressions of your agent. You can't afford to have anyone on your team who isn't a competent professional.

* Do you communicate well with the agent? Good agents make sure that you completely understand everything they say. If you can't understand your agent, don't blame yourself, the agent is probably a poor communicator.

* Do you enjoy the agent's personality? House buying is stressful. You share extremely intense situations with your agent. Working with an agent you like may transform the buying process from a horrible experience into an exciting adventure or, at least, a tolerable transaction. (Back to Top)

Q: Should I work with one or multiple agents?

A: One common fallacy is thinking that five agents will be five times better than one agent. The more agents you work with, the better your chances of quickly finding your dream home. Things don't work that way in the real world. One good agent can quickly show you every home on the market that meets your price, neighborhood, size, and condition specifications. If none of the houses is what you want, good agents keep looking until the right home hits the market. They don't limit their searches to houses listed by their office. Whether you work with one agent or one hundred, you'll see the same houses.

Agents know that they won't get paid if you don't buy. That risk comes with the job. What agents hate is losing a sale after months of hard work because they called you shortly after another agent called you about the same house. That risk is unnecessary.

Don't be surprised, however, if good agents in the same area opt out of a horse race. Their odds of getting paid for their work increase dramatically when they spend their time on buyers who work exclusively with them. Loyalty begets loyalty. (Back to Top)

Q: Should I view my agent as the enemy?

A: Your agent should not be viewed as an adversary. Some buyers think that the less their agent knows about them, the better. Such buyers believe that, after agents know why they want to buy and how much cash they have, the agents will somehow magically manipulate them into spending more than they can afford.

* Good agents ask such questions because they need to be sure that you're financially qualified in order to avoid wasting your time and theirs by showing you property that you can't afford. If your agent knows that you're under deadline pressure to buy, she'll give your house hunt top priority.

* Good agents won't betray your trust. They know that if they take care of you, the commission takes care of itself.

* Good agents know that you have the power to impact their careers. If they please you, you'll be a source of glowing referrals for them. (Back to Top)

Q: What determines whether I need to hire a lawyer?

A: The real estate purchase agreement you sign is a legally binding contract between you and the seller. If you have any questions about the legality of your contract, get a lawyer on your team immediately. No one else on the team is qualified to give you legal advice.

The following factors determine whether you need a lawyer on your team:

* The location of your property: Your agent will know the role that lawyers play in your locale.

* The complexity of your transaction: You need a lawyer if you get into a complex financial or legal situation that can't be covered by the type of standard contract mentioned earlier. For example, suppose that you want to hold title as a tenant in-common and are buying a partial interest in the property.

* If consulting an attorney will help you sleep at night: You may have the world's easiest deal. Still, if you feel more comfortable having a lawyer review the contract, your peace of mind is certainly worth the cost of an hour or two of legal time. (Back to Top)

Q: How do I choose a lawyer?

A: If you decide that you need a lawyer, interview several before making your selection. A corporate attorney or the lawyer who handled your neighbor's divorce isn't the best choice for your real estate team. Get a lawyer who specializes in residential real estate transactions. Good agents and brokers are usually excellent referral sources because they work with real estate lawyers all the time in their transactions.

A good lawyer has the following characteristics:

Licensed to practice law in your state.

Is local talent: Real estate law, like real estate brokerage, not only varies from state to state, it also changes from area to area within the same state. A good local lawyer knows local laws and has working relationships with people who administer them in your area.

Has a realistic fee schedule: Lawyers' fees vary widely. A good lawyer gives you an estimate of how much it will cost to handle your situation. Seasoned lawyers generally charge more than novice lawyers, but seasoned lawyers also may get more done in an hour than inexperienced lawyers can. A low fee is no bargain if the novice is learning on your nickel.

Has a good track record: lf the lawyer you consult thinks that your case may go to trial, find out whether that lawyer has courtroom experience or intends to refer you to another lawyer. Always ask about the lawyer's track record of wins versus losses.

Is a deal maker or a deal breaker (whichever is appropriate): Some lawyers are great at putting deals together. Others specialize in blowing them out of the water. Each skill is important. Depending on whether you want the lawyer to get you out of a deal so you can accept a better offer or need legal assistance to keep your deal together, be sure that you have the right type of lawyer for your situation.

Speaks your language: A good lawyer explains your options clearly and concisely without resorting to incomprehensible legalese. Then he or she gives you a risk assessment of your options in order to help you make a sound decision. For example, the lawyer may say that one course of action will take longer but will give you a 90 percent chance of success, whereas the faster option only gives you a 50/50 chance of prevailing. (Back to Top)

Q: Who is the broker?

A: When you select an agent, your agent's broker is part of the package. If your purchase rolls merrily along, you may never meet the broker. But if a problem occurs, guess who you can tam to for a quick fix?

Brokers are the invisible grease in problematic transactions. Call your broker into the game if your agent is stymied by a tough problem or if you're having problems with the agent. Everything an agent does or fails to do is ultimately the broker's responsibility. After all, the broker's job is to help make your problems go away. (Back to Top)


 


Find the answers to frequently asked questions:

Robert

Robert Battista
Phone: (716) 824-7200
Fax: (716) 824-8728
Email: rbattista@lorigo.com

Specialty:

  • Real Estate Law
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