Q. I am in the process of purchasing a property from an individual directly without using a real estate agent. The owner desires that his lawyer handle closing. I have a provision in the purchase agreement that the sale is contingent on approval of my building plans by the county. Additionally, I desire title insurance, at my own expense. My inquiries to his lawyer on costs have resulted in estimates that in my opinion are out of line with another purchase of property just a few months ago. The difference is in the insurance cost, the search fee and the buyer's share of the closing. I want to protect myself, yet keep costs at a minimum. Should I seek another lawyer to conduct the closing, not require the title search or the title insurance, or seek estimates from other lawyers and bargain with the seller's lawyer? The seller will remain a neighbor, and I do not wish to establish an adversarial relationship. Nevertheless, my priority is protecting myself.
A. My answer is very strong: Get your own lawyer to represent your interests.
There is a large myth continuously circulating throughout the Washington metropolitan area that settlement lawyers are really acting in a "clerical" function. This, in my opinion, is furthest from the truth.
You are buying a house. This may be the largest investment you have made thus far in your lifetime. Someone should be representing your interests.
The seller has his own attorney. That lawyer clearly cannot represent you in any way, shape or form. Even if that lawyer discloses to you that he is not representing your interests, this will not change the situation; you continue to be unrepresented.
Let us look at why representation is important. You are going to obtain a loan, and will sign many papers that will have a significant legal impact on you and your future. Do you fully understand, for example, when you will be in default, and what the foreclosure laws are in your area? Is the lender complying with all of the many federal, state and local laws affecting real estate? What happens if problems arise between you and the seller? Who will be representing your interests in any negotiations between you and the other side?
You have indicated that the sale is contingent on approval of your building plans by the county. What happens if the county does not approve the plans, but the seller is unwilling to return your deposit, claiming, for example, that you did not diligently pursue the application, and thus are in default. Clearly, the seller's lawyer will not come to your assistance in this discussion.
At settlement, your attorney should review the status of title. I strongly recommend that you have the title searched so that you will be able to satisfy yourself that the seller owns the property and that there are no outstanding liens, encumbrances or other clouds on the title. This is especially important if you have a commercial lender involved, because such a lender will insist on having a clear title report.
You have asked whether you need a title insurance policy. This is a most difficult question, because many people do not want to purchase insurance, but would prefer to self-insure themselves. Because the land records in the Washington metropolitan area are not always in tip-top shape, you run the risk that someone can come in later claiming an interest in your property. For example, a husband conveys property but does not have his wife sign the deed. In the District of Columbia, there is a legal requirement -- known as the dower right -- that, in most instances, husband and wife must sign the deed, even if only one of them is on title.
Thus, while one can debate the necessity of title insurance, in most instances it is a rather inexpensive price to pay for "peace of mind."
I do not understand why you have to use the seller's lawyer. Is this an accommodation to your seller? But as we have discussed, this is not clear representation of your own interests. At the very least, if the seller's lawyer is going to do the settlement, I suggest that you hire your own lawyer to attend the settlement with you on your behalf.