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Do I need a real estate attorney to buy or sell a home?


You always want a real estate attorney on your side whether you’re buying or selling a home. They help negotiate deal, write contracts, and avoid complicated legal issues. Attorneys give you peace of mind knowing they will take care of all the complicated moving parts throughout the process and serve as a buffer between the two parties. 

In this blog, we’ll cover why and when you need a real estate attorney, how attorney services differ between selling and buying a home, and how much it costs to hire a real estate attorney. 

 

Do I need a real estate attorney?


In many cases, you are not legally required to have an attorney when buying or selling a home. But if you know your home purchase or sale will not be straightforward, hiring a lawyer is in your best interest. They are educated and experienced in all aspects of real estate transactions.

There are a number of states where you are required to have an attorney for real estate transactions. This includes: AL, CT, DE, DC, GA, KS, ME, MD, MA, MS, NH, NJ. NY, ND, PA, RI, SC, VT, VA, and WV. NewCastle Home Loans does not lend in any of these states.

Overall, if you’re new to the process of buying or selling a home, a real estate attorney is worth the cost. It’s not uncommon for a sale to start simple but have issues arise later. An attorney will make sure you’re getting the best deal.

 

There are two types of real estate attorneys - the buyer’s and the seller’s.


Real estate attorneys have experience on both sides of residential real estate transactions. 

However, depending if you’re buying or selling, an attorney serves different functions. There are two types of attorney’s you can hire: 

  • Buyer’s Attorney - legal representation for the person(s) who are buying a real estate property.  

  • Seller’s Attorney - legal representation for the person(s) who are selling their real estate property.

The services the attorneys provide differ depending on the parties they are representing. Their range of services supports you, your agent, title company, and mortgage lender. 

 

How does an attorney help with buying a home?


In a purchase transaction, real estate attorneys are required in the legal preparation of deeds, document drafting (such as the sales contract or purchase contract), and negotiating. Here is what the buyer’s attorney will typically do on a purchase transaction:

  • Drafting the sales contract/purchase contract - Your attorney prepares and reviews this document, which legally binds the buyer and seller to a sales contract. The legal document includes the conditions and terms related to the sale. The document also includes dates of the offer, acceptance, mortgage contingency, and closing.

  • Negotiate on your behalf - Disputes can come up at any part of a residential transaction. In very bad situations, the buyer can even lose money. An attorney can negotiate on the buyer’s behalf - whether for fixing repairs, maintaining earnest money in a bad deal, and protecting you from defaulting on a contract.

  • Reviewing the title and closing disclosures - At the closing, the buyer’s attorney reviews the figures on the closing disclosure to ensure they are correct. They will also look at the title and double check it is free and clear of all encumbrances and liens.

  • Power of attorney - Sometimes buyers aren’t able to make it to your closing uncontrollable circumstances. In these instances, your attorney will be able to sign for you with a power of attorney agreement.

  • Trust Attorney Opinion Letter (AOL) - If you close your property in a trust, you will need to supply your mortgage lender with an Attorney Opinion Letter (AOL) for approval. An AOL is an opinion from an attorney given in a form of a one-page letter expressing legal conclusions/analysis of the matter regarding holding title in the trust(s).

How does a real estate attorney help with selling a home?


A seller’s attorney also will be heavily involved in the negotiations and preparation of deeds and contracts during the sale of a property. Here is a list of services the seller’s attorney will typically provides:

  • Drafting the Sales Contract/Purchase Contract - The seller’s attorney provides the percent of the tax proration credit - typically either 100%, 105%, or 115%. The attorney investigates whether or not the reassessment of taxes has increased on the property and provide the title company a final number for the tax proration credit.

  • Conducting the title search - The attorney orders a detailed review of public records to see if there are any title concerns with the property. They review the results and ensure accuracy before the title commitment on the property.

  • Deed transfer - The seller’s attorney provides the deed of the property to the new owner. The deed is a formal, legal document transferring rights of ownership to another entity or person.

  • Ordering the Payoff Statement - The attorney will order the Payoff Statement if there is a mortgage on the property being sold and furnish to the title company with the wiring instructions.

  • Reviewing the Paid Assessment Letter - The seller’s attorney reviews the Paid Assessment Letter, a document stating all HOA dues have been paid, and makes sure the balance is zero. This is a condition on the title commitment and will not be cleared without a letter.

  • Ordering the Water/Zone Certificate - The attorney orders a Water and/or Zone Certificate depending on the state and county laws. This certificate indicates whether or not all the utility charges and penalties that accrued to an account are paid in full. Certain counties will require a zoning certificate - the attorney orders this as well.

  • Transferring tax stamps - Title transfers generally require tax stamps to be purchased and affixed to the deed before it can be recorded. The seller’s attorney pays the transfer tax stamps in advance of the closing to ensure the deed is recorded. 

  • Drafting of closing documents - The seller’s attorney drafts the closing documents, which includes the warranty deed, bill of sale, affidavit of title, 1099’s, Alta Statement (invoice for title fees), and the seller closing disclosure.

  • Ordering the location survey - The seller attorney orders a location survey, which shows the location of the improvements on the property in relation to the boundary lines of the property. This results in a physical inspection of the property to make sure the boundaries are accurate.

  • Transferring Tax Declarations - The attorney fills out the form and files the declaration. The attorney also clears title of all issues related to the seller.  

 

How much does a real estate attorney cost?


Attorneys often request a retainer fee typically in the thousand dollar range. The average attorney cost will range from $450-$700. The attorney fee is typically paid at the closing and will be displayed on section H of the closing disclosure.

 

Save yourself the headache, get a real estate attorney.


There is a reason why the attorney’s list of services for both sides are long and lengthy. Purchase and sales transactions require a specific area of expertise in order to go smoothly. If you think you may have any complications in your purchase or sale of a home, an attorney saves you a lot of time and stress. 

If you have any additional questions, feel free to reach out to us at 855-610-1112 or myloan@newcastle.loans to have an expert review your situation. We’ll be able to make sure you have a best team in your corner.

In addition, if you're still in the early stages of buying a home - we have a free guide for first-time home buyers. You'll learn how to get a game plan together for your home purchase and learn insider advice from the people who approve or deny your mortgage.

Get our FREE First-time Home Buyer Guide!

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