Q My wife and I are considering buying a house, and we realize the importance of having an attorney to protect our interest at settlement. Should we have an attorney at an early stage -- for example, at the time the offer to purchase is made -- or should we include in the offer a condition that is subject to an attorney's review and approval?
A It is always considered self-serving advice when I discuss the role of a lawyer in connection with a real estate transaction. However, I believe that an attorney is valuable in real estate transactions.
There are many players in real estate transactions. There is a seller, a real estate broker (or agent), a buyer, a lender and other minor representatives.
The seller is often represented by a real estate broker or agent, although this representation is not in the form of an attorney-client relationship. Often, there are two real estate agents involved. The listing agent is the real estate brokerage firm that obtains the initial listing from the seller. A listing is the authorization to proceed with showing and attempting to sell the house. Often, a selling agent brings the prospective buyer into the property and, if a real estate contract is signed, the listing agent shares its commission with the selling broker.
Buyers often confuse the function of a selling broker. They assume that the selling broker is trying to represent the buyer's interest. This is a very logical assumption, since usually neither the buyer nor the broker (agent) know the seller, and often the selling agent has spent hours -- if not days or weeks -- showing the buyer houses.
Nevertheless, from a legal point of view, the selling and the listing agents are agents of the seller -- and owe the seller a fiduciary duty. Indeed, the National Board of Realtors has mounted a major campaign to alert and educate real estate agents and brokers throughout the country of their responsibilities to the seller. After all, the seller is paying the commission -- albeit one that is split between the two agents. The seller is paying this commission, and since an agent cannot serve two masters, it must be made very clear at all times that the selling agent is not representing the buyer.
Thus, the buyers often are unrepresented. They find a house they like and begin the negotiating process. At the end of the negotiating process, if the parties have to come to a "meeting of the minds," a real estate contract is signed and there is a binding valid legal contract.
But this binding legal contract carries rights, responsibilities and obligations of which the buyer may not be fully aware. For example, did the buyer understand the need to have an inspection contingency? Did the buyer understand the right to negotiate on such items as points, settlement costs or even settlement date?
These and numerous other questions would be addressed prior to entering nto a real estate contract. Once the contract is signed, it is often too late to try to renegotiate that document -- unless, of course, the seller wants to cooperate.
Thus, it is important to retain a lawyer in advance of the real estate transaction. Have the lawyer review the contract before it is signed. Make sure that the lawyer is knowledgeable on real estate and discuss fees with the lawyer before you ask him or her to do any work. It often is a good idea to have the fee arrangement put in writing, so there will be no misunderstanding later on.
In the past, many lawyers based their fee on a percentage of the purchase price of the real estate. While this is no longer common and most lawyers charge on an hourly basis, I understand that some lawyers still charge a percentage.
You asked whether it is a good idea to include in the offer a condition that the contract is subject to an attorney's review and approval. This is acceptable, but should only be used as a last resort if you are unable to reach your lawyer before you sign the contract. There is a major difference between negotiating the form and terms of the contract before it is signed, than having to do so after the fact.
Your lawyer should be able to help you analyze the terms of any loan arrangements that you will be making with a mortgage lender. There are different types of mortgage financing, and even experts are confused about various approaches. You may find too late that you have committed yourself to the wrong type of loan for you, and you definitely should keep in mind that your potential lender is also looking out for himself or herself.
Buying a house is no longer easy. You have to analyze all the options and, hopefully, you will do that before you sign documents that are binding and enforceable. Your lawyer should be able to assist you -- but only if you call him or her while you still have time to negotiate.
Benny L. Kass is a Washington attorney. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed, stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.