While many consumers believe that settlement is a complex process that is beyond understanding, it is actually the one place in the real estate system where the cards of all the players can clearly be seen.
Settlement is little more than an accounting of who owes what to whom. A settlement sheet, which resembles an income tax form to some extent, is merely a summary of accounts. Most settlement providers use a settlement sheet developed by HUD or forms that are very similar.
There are four groups of settlement providers: attorneys; title companies; settlement firms, and, in California, escrow companies. Whether one is better than another is an open question that depends specifically on the skills of the individual provider. Each group, of course, can explain at great length the superiority of its approch.
While real estate brokers have an "agency" obligation to serve the interests of a principal, settlement providers have amorphous commitments. They are clearly agents of the settlement process but they may also be an agent of the seller or buyer.
Who they may ne representing, if anyone, is further complicated by the providers' need to work from the instructions of the lender and the income they may derive from the sale of title insurance.
A further conflict stems from the payments received by settlement providers to conduct the closing. There is little incentive to reduce costs since a savings to one party may be an expense to another.
Sellers who hire settlement providers should require a letter stating that the provider will perform two functions: first, to conduct the settlement as an agent of the closing process; second, to represent the best interests of the seller as an advocate.
In cases where others hire the settlement provider, sellers should insist that the language of the contract releases them from any obligation to share the cost.
Sellers in this situation must look elsewhere for support.
The most basic source of protection is a well-written contract that specifically outlines the sale agreement. A second from of protection is the use of an outside attorney (usually the one with whom you have been working) to examine the papers prior to closing. an outside examination will generally make it unecessary for a seller's attorney to attend the settlement meeting.
If you are providing a first or second mortage - in effect, where your are acting as a lender - your attorney should supply the mortgage forms. These "standardized" documents, just like sale contracts, are often skewed toward one party. Using the right form at settlement may provide important rights immediately while preventing future disputes.
Peter G. Miller teaches the course, "How to Sell Your House - With or Without a Broker" through the Consumer Information Institute in Washington.