Here are some of the most FREQUENTLY asked questions by Real Estate Attorneys.
Real Estate Sales:
Why do I need an attorney?
Well, for starters, Deeds must be drafted by an attorney. You could pay the Buyer’s attorney to draft the Deed, but they do not represent you, and other issues arise that need to be addressed, like mortgage payoffs, final water/sewer reads, oil adjustments, title clearing, to name a few.
“Most attorneys have their Seller clients sign a Limited Power of Attorney, which permits us to sign on your behalf at closing.“
Can’t the realtor I am using just draft my Purchase & Sale (P&S)?
They can, but it is teetering on the unauthorized practice of law. A P&S is a legal document, and as such, requires someone with legal training to handle negotiations.
My recent mortgage statement says I owe X.
Why does my payoff statement show a higher payoff? There are several reasons! Your recent mortgage statement doesn’t calculate the per diem (daily) interest owed until the payoff date, so your payoff will be different if we are calculating out a few weeks. It will also likely contain mortgage release fees of $75, and any escrow shortage for taxes and insurance that have been paid on your behalf. If you have an FHA loan, you pay interest for a whole month and DO NOT get reimbursed the interest if you pay off the loan mid-month.
I don’t understand why we have to pay interest to that date. Why am I overpaying?
Closing dates get moved all the time, especially when the Buyer is financing the purchase. We generally will request a payoff good through a week or so after closing to not only comply with industry standards but also to give a little bit of cushion so we have an accurate payoff figure. Any interest paid, but not earned, by the lender will be returned to you.
My spouse isn’t on the Deed, so why does he/she have to sign?
Massachusetts has a Homestead law that gives a primary residence exemption as additional protection to homeowners. Having your spouse sign, even if not on the Deed, puts everyone on notice that they had Homestead Rights in the property.
Do I have to attend closing? I don’t want to miss work.
NO! Most attorneys have their Seller clients sign a Limited Power of Attorney, which permits us to sign on your behalf at closing. The catch? You must personally sign your Deed, a Deed under Power of Attorney is generally not conveying good title (with exceptions, of course).
When will I get my money?
Of course, this is a big one for most Sellers. Once we have signed all the documents necessary, the closing attorney will record the Deed and other documents at the applicable Registry of Deeds. This usually happens the same day, but occasionally we get held up and cannot record until the following business day. Closing attorneys are not permitted to disburse funds to either the Seller, Seller’s realtor, or any third parties until the transaction is fully funded and the Deed is recorded.
Do I have to leave the house once the Deed is recorded?
YES, but really, you need to leave before the Deed is recorded. The property should be empty and left in broom clean condition the morning of closing. Absent an agreement with the Buyers, Sellers are not permitted to remain in the home post-closing.
Will I have to pay taxes on the sale?
As is usually the case in the legal world, it depends. If you are single, $250,000 in profit is exempt from taxation. If you make a profit of $249,999, you will not pay taxes on the sale. If you are married, the profit exemption doubles to $500,000. Most closing attorneys will issue 1099 at closing for tax purposes. If it is not reportable, it can still be filed, but there will be no tax implications.
REAL ESTATE PURCHASES:
The Seller’s attorney sent me a P&S…..I can sign it, right?
WHOA! No. Is all the recording information right? Is your name right? Are all the terms of the offer included? Do you have a mortgage contingency or home inspection contingency? The Seller’s attorney works for the SELLER. Your standard P&S contains terms favored to the Seller and does little to protect the Buyer. You need to have this reviewed by an attorney, as it is a legally binding document.
This is a private sale, and the Seller doesn’t have an attorney. Can I give them my earnest money deposit?
NO, NO, NO! The Seller themselves should never have direct access to your deposit. You need to be sure it is in a separate client trust account, protected from creditors. While some Sellers are trustworthy, you cannot trust them with a deposit on life’s biggest investment. Attorneys or agents should hold the deposits and no one else.
Should I waive my home inspection to make my offer more attractive?
First, please work with an experienced Buyer agent for your purchase-they will make a WORLD of difference, and I can recommend amazing people in your area. The answer is, it depends. Is it new construction? You are probably okay. Is it an 1870’s Victorian? YOU MUST! Massachusetts Buyers are legally bound to purchase with an accepted Offer. You can lose a lot of money if you waive a home inspection and find out that you have a cracked foundation.
Why do I need a Buyer agent?
For starters, they are nearly always free to the Buyer. Buyer agents get paid by Seller via the Seller’s agent’s commission split. There is no reason NOT to use one. Buyer agents can help you deal with inspectional issues and crafting an offer that will get accepted.
Why do I have to pay for the Lender’s title insurance? What IS title insurance? Do I need an owner’s policy?
The lender is never going to come out of pocket for their incurred fees-those will always be passed on to the Borrower. Title insurance is a policy that ensures the ownership of the property, based on a search of available public records, is unencumbered and free of liens that impair the value of the property. An owner’s policy is NOT required but highly recommended.
But, if I am paying for a title exam, and you did your job, I shouldn’t need title insurance, right?
Wrong! We can only examine public records. If there is a missing heir, forged deed, etc, we have no way of knowing these from public records. Owner’s title insurance protects from the unknown. Your one-time premium is good for the life of ownership and will cover you for any unknown defects up until the time you purchased the property.
The Declaration of Homestead is just to make more money, right?
No! A Declaration of Homestead will protect your primary residence from creditors taking your home to satisfy a judgment if you have less than $500,000 in EQUITY in the property. True story: An agent I work with convinced her client to declare homestead after some discussion about the necessity. Immediately after closing, her client got into a car accident that was pretty bad, and she was at fault. Because she filed a Declaration of Homestead, any lawsuit or resulting judgment that arises from that accident may attach to the home, but the home cannot be seized and sold to satisfy the judgment.
Why do I need an escrow account?
Most lenders require an escrow account, sometimes called an impound account. Each month, a certain amount is added on to your principal and interest to cover your escrow payment. That money goes into an account to pay your property taxes and homeowner’s insurance when due. At closing, expect to deposit 3-5 months of each into your escrow account.
How long will closing take?
Closings usually take 45 minutes or so, depending on your lender, and how fast you sign.
When can I start moving?
You will get your keys once we are on record and you officially own the property. Liability falls on the Seller if anything happens before, so it is a protection for them, but as soon as you receive the go-ahead, move in!
Nothing Contained in this post creates an attorney/client relationship, and should not be construed as legal advice. Each scenario is different, and you should contact counsel for advice on your potential claim.
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