Buying or Selling a Home? Here are Some Legal Tips
If you’re in the market, or considering buying or selling, here are a few tips from the legal side that should make your home-selection and transaction run a little smoother.
1. Get your attorney involved early.
Much of the time, the attorney is not involved in the negotiation of the property. Real estate agents and the buyer and seller typically negotiate the deal, coming to an agreement on price and any additional property included in the sale (such as appliances, light fixtures, etc.), and then send a signed contract to the attorney. There’s nothing inherently wrong about this, but in a competitive market, or where multiple offers were submitted, having an attorney involved at the outset can reduce the amount of time spent in attorney review – the period after the contract is signed, but before it becomes binding on the buyer and seller, during which an attorney can review the contract and make changes. Typically, an addendum will be drafted amending the contract of sale (which is generally prepared by the real estate agent). If the attorney has been involved throughout, the addendum can best reflect the negotiations and reduce the amount of additional legal negotiations often accompanying the attorney review period. Once attorney review is completed, the contract becomes binding, so the seller can’t continue to offer it for sale and the buyer can’t back out (outside of any contractual contingencies).
2. If You’re Buying an Existing Home, Be Prepared to Make Some Repairs
Purchasers of homes that have had prior owners should remember that they won’t be buying a house in brand-new condition. Normal wear and tear is to be expected and the seller most likely isn’t going to fix everything. As you decide whether to put an offer in, and then when you’re negotiating the price, keep some of the minor repairs you may have noticed in mind. You’re more likely to negotiate these repairs into the price at the outset than to ask for reductions later on in the inspection process. Also remember that the real purpose of the inspection process is to find significant defects in the home, such as water leakage, roof or structural issues, or termite and pest infestations. Minor issues are usually not negotiated as part of the inspection process. Rather, these defects are generally implicitly considered to be part of the reason the price was negotiated the way it was. To save negotiating time during the inspection process, as well as frustration and headaches down the road, just keep in mind that you’re generally buying the house “As-Is,” except for defects that are not obvious.
3. Don’t Be Afraid to Ask Questions
This is especially true when reviewing the contract with your attorney. I’ll usually spend a good half hour to 45-minutes reviewing each provision of the contract with my clients, as much of the language and process is unfamiliar, especially if you’ve never purchased a home or haven’t bought or sold one in a while. There have been significant updates in the law surrounding the purchase of real estate in the last few years as a result of the sub-prime mortgage crisis. Additionally, failure to fully understand provisions of the contract may result in frustration later on in the process, particularly when it comes to the home inspection.
4. Don’t Schedule Your Movers Until The Closing Date is Firm
Your contract of sale will include a date for closing of title. Often, this date will change as the process moves along. While it’s tempting (and entirely understandable) to want to schedule something as important as the moving company ahead of time, it can actually cause more headaches than it saves. The home-buying process is fluid and dependent on many moving parts. While everyone involved should be attempting to close on the date in the contract, there are a number of places for changes to occur. Sometimes this means that the date will move up a bit and you’ll close sooner than expected. Sometimes, delays happen. Not all delays are avoidable and a delay doesn’t necessarily mean your agent or attorney (or the other agent or attorney) did anything wrong. As a quick example, many home sales are contingent upon the sale of another home – a seller may be depending on the purchase of a new home before moving out – and that contingent sale may get delayed. In that event, neither the buyer or seller may have done anything wrong, but the sale gets delayed. This can be frustrating, but even more so when you’ve already scheduled movers, hotels, utilities, etc. It’s great to be prepared – but I’d advise you to check with your attorney beforehand to make sure the dates are still attainable.
5. Remember That Everyone Wants the Same Thing – to Sell the House to the Buyer
Except in some unusual cases (or bank-owned properties), it’s good to remember that this isn’t supposed to be an adversarial process like litigation. Everyone involved should be trying to make the sale happen. Most of the contention in the home-buying process results from one (or both) parties feeling that the other side is being unreasonable or unnecessarily contentious. Sometimes this is true. Much of the time, a closer look at the situation reveals that both sides are just trying to get the best deal possible or look after their own interests. This type of contention generally shows up in price negotiations or inspection negotiations. Your attorney should be giving you clear-eyed advice and letting you know where the middle ground lies. In any case, it’s beneficial to everyone involved to try to look at the situation from the other side, whether you ultimately end up agreeing on the contentious issue or not. Again, your attorney should be able to help you through this and, at the end of the day, is there to protect your interests.
Buying (or selling) a home can be incredibly exciting and rewarding. It can also be frustrating and time-consuming. Hopefully, by utilizing these tips and having a good team in place, the process will be more rewarding than frustrating.
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