Buying and Selling Real Estate
The purchase or sale of a home is often the single greatest financial transaction undertaken by a person or couple. A mistake at this time can undo a lifetime of effort. The complexities and technicalities involved in buying or selling your home require the services of an attorney who represents you and your interests.
The Purchase & Sale Agreement
Careful Buyers will do their homework before making an offer and certainly before signing a purchase and a purchase and sale agreement, including spending time in the neighborhood and at the Town or City Hall to examine the existing and potential abutting and nearby uses of land which could impact the property in the long term. A Buyer should examine the zoning maps and inquire about past, present and future uses and development plans of nearby areas. Sometimes owners are surprised to find that their home is situated near an industrial use that has the potential to generate traffic, noise or vibration, or adjacent to the site of a future ball field or subdivision. A very careful Buyer should consider having their attorney perform their own title examination well in advance of the closing, perhaps even before the P&S is signed (if there is time). A title examination can identify prior owners and uses of the land as well as conditions, restrictions, easements and notices which may impact the long term use of the land but not necessarily make the land unmarketable.
You should engage an attorney before you sign the Offer to Purchase, because, in certain circumstances, an Offer to Purchase may be a binding contract between the Buyer and Seller. You should absolutely consult with your attorney before entering into a Purchase & Sale Agreement, which is a binding contract between the parties (it defines the respective rights and duties of each).
There is no "standard form" Purchase & Sale Agreement which can be used in all transactions. There are, in fact, dozens of so-called "standard form" P&S's, each containing phrases which may be adverse to one or the other party. There are pre-printed forms which usually contain one or more of the following:
Seller's guarantee to pay a broker's commission, even though the Buyer fails to perform and there is no sale.
Seller's obligation to pay "his/her share of points, mortgage origination, or discount fee", which can amount to thousands of dollars.
Seller's obligation to vacate the house completely, prior to passing papers.
Some of these provisions may be necessary in certain situations. The only way you can be fully protected is to have your attorney examine any Offer to Purchase and Purchase & Sale Agreement, or any other relevant instrument, before you sign it. Keep in mind that it is extremely difficult (or impossible) for a lawyer to protect his/her client when the client has already bargained away his/her rights in a poorly drawn or disadvantageous agreement.
Examination of Title
After the Purchase & Sale Agreement has been signed, and financing arranged, a full examination of the title must be undertaken, covering at least 50 years, usually performed by the attorney for the buyer's lender. Some problems that may be uncovered which may affect the title are:
Outstanding mortgage(s) of record
Debts of decedents
Restrictions on use
State and federal laws
Attachments and judgments
Rights of others to use the premises
Difficulty in getting mortgage discharges
Under most circumstances, the cost of correcting title defects is the Seller's obligation. The Seller may not hear of alleged defects until immediately prior to the closing, and in those circumstances, a Seller is well-served by having previously retained counsel who is familiar with the transaction, and who is available to immediately address the correction of title defects. The buyer should consult with an Attorney to discuss the potential liabilities created by the defect.
Role of Attorneys
Legal counsel is indispensable to an orderly real estate sale. The practices of banks and mortgage companies have changed substantially over the past few years. The attorney for the lender represents only the lender, and significant new demands on the lender's counsel have decreased the time and attention the bank attorney can volunteer to resolving concerns of both the buyer and seller. It is not uncommon for a bank attorney to completely disengage himself/herself from any dispute which may arise between buyer and seller. Additionally, with increasing frequency, closings are being performed by non-attorney "closing agents". In those circumstances, unless the buyer or seller are represented by counsel, there may be no attorney present at closing.
Here is a summary of some of the responsibilities a seller or buyer can share with his/her attorney:
Review and/or preparation of the Offer to Purchase and the Purchase & Sale Agreement, and negotiation of the terms of the agreements
Advice regarding who should hold the deposit, and regarding reasonable terms of the buyer's mortgage commitment
Correction of title defects
Drafting a new deed (a seller is obligated to prepare and bring a new deed to the closing)
Estimation of closing costs
Special arrangements to correct title defects, or special arrangements regarding escrows
Protecting the seller in the event of a breach of the Purchase & Sale Agreement by the buyer.
Passing Papers and Settlement Costs
The closing must follow the provisions of the Purchase & Sale Agreement. Keep in mind that unwritten or unsigned agreements between the buyer and the seller not included within the Purchase & Sale Agreement are probably unenforceable. The bank attorney will prepare a Settlement Sheet, reflecting the various expenses of the closing in accordance with the terms of the Purchase & Sale Agreement. The seller's normal expenses include:
Attorneys fees, including negotiations, drafting documents, correction of title defects, removal of liens and preparation of a new deed
Massachusetts tax transfer stamps ($4.56/thousand)
Recording costs and nominal costs of obtaining instruments necessary to clear title
Real estate broker's commission.
Title Examinations, Title Insurance and Closing Documents
For detailed information regarding the closing process and title insurance, visit www.alta.org and visit www.homepath.com. (Both sites are independently maintained and the opinions expressed therein may not represent the opinions of Alphen & Santos, P.C.)
Power of Attorney
In certain circumstances, it is preferable that the seller not attend the real estate closing, so that the seller can attend to business, family or moving matters while the seller's attorney attends the closing. With some advance notice, your attorney can prepare the deed, a Limited Power of Attorney, and Seller's Disclosure form for your review and execution, prior to the closing. Your attorney will leave the closing with your proceeds check and hold it in escrow at his/her office until the deed is recorded at the Registry of Deeds. Once the deed is recorded, you can pick up the proceeds check at your attorney's office, without the need to travel to the office of the lender or the lender's attorney.
It is important that you be represented by the attorney of your choice before you begin the selling process. Attorneys fees for representing a seller or buyer in a typical residential real estate transaction are surprisingly affordable.
Commercial Real Estate
Commercial Real Estate is a very broad area and the level of services provided to commercial clients varies depending upon the needs and abilities of commercial clients. Commercial real estate transactions range from a construction loan closing (which can include a title examination and a zoning compliance letter and issuance of a title insurance policy) to every step of the acquisition, development, construction and sale of a commercial, industrial or residential development.
Commercial Purchase and Sale Agreements and Negotiations: In the acquisition process, clients need representation in the negotiation of purchase and sale agreements. Negotiation issues can include due diligence provisions, zoning and title contingencies, permitting contingencies, financing contingencies, seller financing provisions, environmental contingencies, extension provisions and liquidated damages provisions.
Counsel for a commercial developer is customarily responsible for providing much of the documentation required by construction lenders as part of the construction loan and mortgage process. Counsel is often required to provide a wide variety of documents including enforceability opinions, zoning compliance letters, title insurance policies and certificates of legal existence. Counsel will often review and comment on the proposed loan documents prior to the closing date to be certain that the terms match the requirements of the commitment letter.
Zoning Opinion Letters
While the buyer is examining site conditions and the environmental issues associated with the property, the attorney will examine the record title to the property and the applicable zoning and regulatory provisions. It has been said that in order to write a reliable zoning compliance letter for property in Massachusetts, the author has to own a set of all-season tires; a reliable zoning compliance letter usually requires a few trips to the local town hall and a search through the boxes stored in the basement to review prior decisions pertaining to the property and the history of the zoning by law applicable to the property. Ultimately, the title examination and the zoning information will be used to provide documentation required by the lender, but the information is invaluable to the permitting process.
Land Use Regulations
The permitting process includes working with the project engineers to identify all of the applicable land use regulations, and adjusting the layout of the project to meet applicable requirements. When full compliance is not practical, local knowledge of the expectations, customs and practices of the local permitting boards is very valuable. Many regional and national developers routinely retain local counsel to provide guidance to the project engineers and represent the project before the local boards. The permitting process has become significantly more complicated than it was even 10 years ago because of the proliferation of new regulations pertaining to wetlands, endangered species habitat areas, storm water management and environmental protection, plus the increase in the need for special permits for almost any project. A recently approved new car dealership, constructed within a commercial district where dealerships are a permitted by-right use, required six (6) special permits from the Planning Board, one (1) special permit from the Zoning Board, Site Plan Approval from the Planning Board and an Order of Conditions from the Conservation Commission.
The Role of Local Counsel
Sometimes regional or national developers will rely on local counsel to manage the permitting process by coordinating the efforts of the site engineers, wetlands scientists, architects, lighting experts, traffic consultants and other experts. This allows the developer to have the person closest to the process make immediate decisions or recommendations regarding plan revisions and strategy. The approval process can take weeks or over a year, and local boards typically meet only twice a month and have limited time period within which revised plans and data may be submitted between meetings. Having local counsel provide coordination regarding the ways to most efficiently respond to concerns raised at board meeting improves the permitting process by demonstrating to the boards and their staff that the client is attentive and responsible. If a permit is denied, or a project is appealed, local counsel remains invaluable as a resource regarding the history of the permitting process and the regulatory requirements. Even if special litigation counsel is engaged, local counsel can work hand in hand with litigation counsel to resolve the dispute efficiently and favorably.
Post Approval Assistance
Once permitted, counsel customarily remains involved in fulfilling certain post-approval conditions ranging from recording the decisions to preparing required restriction documents, to providing check lists to the developer of the numerous requirements contained within the decisions. Counsel is also involved in performing the real estate closing and providing the necessary documents and opinions required of lenders. In the event that title issues arise, counsel can work out the resolution of same prior to the closing, usually with the assistance of seller’s counsel. In the event that issues arise pertaining to compliance with the applicable permits and approvals, having first hand experience with the plans and the conditions of approval, counsel can assist in expediting resolutions either by providing clarification or suggesting appropriate response actions. Subdivisions also require security for the construction of roadways, and release mechanisms prior to the issuance of building permits, and counsel can prepare the necessary documents and meet with the necessary officials to obtain required approvals.
Sales and Leasing
Counsel also can participate in the ultimate sale or leasing of the completed premises by preparing and negotiating leases or purchase and sale agreements. In residential developments, the developer’s counsel can participate in all aspects of the sale transactions from assisting the brokers in developing marketing information and draft purchase and sale agreements, to agreement negotiation, addressing title issues raised by buyer’s counsel, deed preparation and preparation of other documents required for closings, and representing the seller at the closing.