What Does A Real Estate Lawyer Do?

Every case and every client, whether specific to real estate or not, fits into one of two categories: transactional or litigation. The majority of real estate attorneys in Somers and the surrounding areas in Westchester County focus on transactions.

Why? Simple economics – the number of real estate transactions in Westchester County outweigh the number of cases involving litigation. Therefore, most real estate attorneys in the local area handle transactions.

Taking that one step further, most real estate attorneys focus on residential transactions. Why? Two reasons. First, the number of owner-occupied properties in Westchester is higher in comparison to rentals. Second, there are more residential transactions compared to commercial transactions, especially in a mostly suburban areas.

So now that we’ve established why most real estate attorneys represent buyers and sellers in residential transactions, let’s talk about what they actually do. the simplest way to explain that is to walk through each of the four main parts of a residential real estate transaction.

1. Pre-Contract Title Inspection

While uncommon, working with a real estate attorney in Somers and nearby areas to inspect certain legal aspects of a property before signing a Contract of Sale can often save a lot of time and expense.

For example, ordering a municipal search through a reputable New York title company will show whether the current property owner has received certificates of occupancy and/or certificates of compliance for home additions, fences, swimming pools, central air conditioning, etc. This is important because, if the current owner has not received certificates for work performed to the property, then a lender could refuse to make a loan until the certificates are obtained, so it’s better to know what you don’t know before signing a Contract of Sale.

2. The Contract of Sale

At its most basic, the Contract of Sale is one of the most important documents when it comes to residential real estate transactions because it controls the transaction by way of setting forth the rights and obligations of both the buyer and seller. 

The Contract of Sale is incredibly comprehensive and is the result of decades of real estate lawyers fine-tuning each and every provision. It not only includes the property address, the purchase price, the amount the buyer will put down as a deposit, the personal property included or excluded from the sale, the amount that will be mortgaged (if any), and the approximate closing date, but it also includes other important terms such as who is responsible for paying transfer taxes, how liabilities will be apportioned between the parties, what happens if either party needs to reschedule the closing, what is to be provided at the closing, etc.

Real estate attorneys will often attach what are called “riders,” or “addendums” to the Contract of Sale, the purpose of which are to reinforce provisions already in the Contract or include additional provisions that obligate the seller to have the electricity on the day of the closing, maintain the landscaping, consent to electronic signatures, etc.

Ultimately, the Contract of Sale is a document that is can contain upwards of ten pages of language such as, “there is no pending in rem action,” “The Parties shall comply with IRC §§ 897, 1445 and related provisions, as amended, and any substitute provisions of any successor statute and the regulations thereunder,” and, “Subject to any matter affecting title to the Premises (as to which Seller makes no representations or covenants), Seller represents and covenants that . . .” Needless to say, there likely isn’t a real estate attorney in Somers or elsewhere in Westchester who would recommend that a buyer or seller attempt to negotiate a Contract of Sale without the help of a professional. It would be like jumping into shark-infested waters wearing a coat made out of tuna fish.

3. The Due Diligence Stage

Once both parties have signed the Contract of Sale and the buyer has delivered the contract deposit to the seller’s attorney to be held in escrow, there are various tasks both attorneys complete before the closing can occur.

First, the attorney for the buyer will provide the Contract of Sale to a New York title company and order what’s called a title report. What a title report is and its purpose in a real estate transaction is beyond the scope of this article but, in short, a title report is the written analysis of the status of legal title to real property, including a property description, names of the owners, how the title is held, tax rate, encumbrances, and any real property taxes due. 

Like the Contract of Sale, the title report is an incredibly important part of the transaction and, also like the Contract, it is not exactly easy reading. A good real estate attorney will help guide a buyer through the report and explain each and every section to ensure that the buyer is not assuming any unnecessary risk identified in the report.

At the same time, the attorney for the seller must work closely with his or her client to clear any objections to title, ensure the seller obtains a mortgage payoff letter if there is still a mortgage on the property, obtain any missing certificates of occupancy or compliance, prepare the closing adjustments to be agreed to by the attorney for the buyer, prepare the deed, prepare the New York State transfer documents such as the RP-5217 and TP-584, and work with the other attorney and counsel for the lender (if any) to schedule the closing.

4. The Closing

Upon completion of the due diligence on both sides of the transaction, the closing is scheduled. The closing is when the buyer receives title to the property and the seller receives the balance of the purchase price. The attorneys for their respective parties make sure all of that actually happens while minimizing post-closing wrinkles.

For example, if the buyer is obtaining a loan, then it is the attorney’s job to explain each document that the lender needs signed, and there will be a stack of papers if a loan is involved. There will also be many forms that both parties need to sign and their respective attorneys are tasked with ensuring those documents are completed according to state law and local custom.

Also, if any issues arose during the final walk-through immediately before closing, then each attorney is tasked with creating a solution that will satisfy both parties and allow the closing to continue to avoid the time and expense of rescheduling.

The attorney for the seller who has been acting as the escrow agent and holding the buyer’s deposit is tasked with disbursing those funds to the appropriate parties, including but not limited to New York real property transfer taxes, other title costs, real estate broker commissions, etc.

Both buyers and sellers will often sit through closings with something akin to wonder on their faces due to the volume of paperwork changing hands, the number of people walking in and out of the conference room, and what may seem like a sort-of lackadaisical manner on behalf of the attorneys. While it is entirely normal to feel a bit bewildered during the closing, it’s important to remember that each attorney will ultimately be liable for any errors or omissions so while it may seem otherwise, the attorneys very likely know exactly what they are doing as they go about the closing process.

Give us a ring or email us and let’s talk about how we can help you buy or sell your next home.