Buying a home is a significant decision and financial commitment which one may only do a few times in one’s lifetime. Prospective homebuyers spend a great deal of time and research to learn as much about the property as possible. However, Buyers are often unaware of the process involved in the actual home buying process itself. This is where the knowledge and experience of a real estate lawyer is crucial This column will examine the important role that the real estate lawyer plays in ensuring that the Buyer’s interests are protected and that the closing proceeds smoothly and without any unwanted surprises or complications.
- The lawyer will have an initial conversation with the Buyer. In our office, we make it a practice that a real estate lawyer will have an initial conversation with the client to ask questions about the transaction. The purpose of this call is two-fold. First, the conversation will elicit information to identify potential issues or problems which could impact the closing. Solutions or recommendations could be offered well in advance to avoid a last minute difficulties. Second, the conversation will provide the Buyer with a roadmap of how the transaction will unfold and what the steps that the Buyer is responsible for completing, such as ensuring that its lender provides the lawyer with the necessary mortgage instructions in advance of closing.
- The lawyer will review the Agreement of Purchase and Sale. The Agreement contains much legal jargon which Buyers may not understand. An experienced lawyer will be able to explain these terms, their meaning and importance. As will be seen, communication between the lawyer and the Buyer are a critical component of the transaction which cannot be overstated.
- The lawyer will conduct and review a title search on the property. This is to ensure that the Seller owns the property and that there are no issues with the title to the property. If there are, the lawyer will identify them and work towards resolving them, hopefully with the cooperation of the Seller’s lawyer.
- The lawyer may conduct other searches for the property being purchased. In our office, we always purchase a tax certificate from the municipality to ensure that the Seller has paid the property taxes. While there is a modest cost to obtaining a tax certificate, many lawyers will not do this so that they can provide a low all inclusive quote to the Buyer in an effort to get the deal. In my view, failing to order a tax certificate is short sighted and will create problems following closing when the Buyer learns that they have to pay the Seller’s portion of the property taxes and then have to either pursue the Seller or make a title insurance claim.
- If the property being purchased is a condominium, and the offer is conditional on lawyer’s review of the condominium status certificate and related condominium documents, the lawyer will review these documents which should yield important information about the unit and the condominium building as well. If the Buyer is not satisfied with the information in the status certificate, it has the option of cancelling the transaction, provided that notice is provided in accordance with the terms of the Agreement of Purchase and Sale.
- The lawyer will need to receive and review the mortgage instructions which should be sent by the Buyer’s lender at least 1 week prior to the closing date. If there are any unusual conditions contained in the mortgage instructions, these will need to be addressed and resolved well in advance of the closing date. It is imperative that the Buyer works with its lender or mortgage broker to ensure that mortgage instructions are provided to the lawyer well in advance of the closing date.
- The lawyer will prepare all of the paperwork and prepare all of the financial figures so that the Buyer can understand the breakdown of the amount of funds required to close the purchase transaction. This includes reviewing the statement of adjustments with the Buyer, receiving funds from the lender, receiving funds from the Buyer, as well as accounting for items that need to be paid on closing such as land transfer taxes, title insurance, government registration fees and legal fees.
- The lawyer will quarterback the transaction which means the lawyer will work with the lender, the Buyer, as well as the Seller’s lawyer to ensure that all the closing documents are in order and that the transaction closes without any surprises.
- Prior to closing, the Buyer will be required to meet with its lawyer to review and execute all of the mortgage and closing documents. Due to the Covid pandemic, we are offering our clients the ability to have virtual meetings where documents can be signed from the safety and comfort of their home, thus eliminating the need to physically attend at the lawyers office. In our office, our clients meet with a lawyer to review and explain the documents and give the clients an opportunity to ask the lawyer about any aspect of the transaction. Unfortunately, many high volume discount law firms do not adapt this practice and permit clerks to sign up clients.
- The lawyer will close the transaction on the closing date by working with the Buyer’s lender and the Seller’s lawyer. Once the deal closes, the Buyer will be advised how the keys can be obtained. The most common practice is to have the keys left in a lockbox on the property with the code being provided to the Buyer once the deal closes.
- Following closing, the lawyer will provide the Buyer with a full report of the transaction and provide the Buyer with copies of all documents, including the transfer/deed.
There are many different lawyers who offer different levels of services with different fee structures. Considering the importance of the transaction, a Buyer should not select a lawyer based on price alone. A savvy Buyer will want to ask a lawyer:
1) Does the lawyer do a full title search of the property?
2) Will the lawyer be accessible to answer e-mails and telephone calls?
3) Will the lawyer meet with me to sign the closing documents or will I meet with a law clerk?
4) Is the lawyer experienced enough to deal with more challenging deals where there are disputes or title problems?
5) Does the lawyer have good reviews and references?
6) Will the lawyer be available following closing in case there are post closing problems/issues that need to be addressed?
In summary, a Buyer needs a team of professionals to navigate it through the home buying process. An experienced real estate lawyer is an important piece of the puzzle to ensure a smooth and worry free closing.