Your house is generally your single greatest assets and financial investment that you will make. Whether you are seeking to purchase another home (upgrade or downsizing), or looking to rid yourself of debt, or just ready for a change, selling your house may be in your best interest.  In some cases you may have gotten in over your head and cannot afford your mortgage, but do not wish to file for bankruptcy a short sale of the your may be the right choice for you, provided you have a competent real estate broker and attorney on your side. In order to proficiently sell your home and avoid problems, complexities and/or technicalities involved you should hire an attorney to represent your interest.

When to Hire An Attorney

You should hire an attorney, called the seller's attorney, as soon as you have an agreed upon offer to sell the house, if not sooner.

An offer to purchase contract is a binding contract on both the seller and buyer. It is the first document to secure the property you wish to sell. The real estate broker will generally assist in reviewing the contract but cannot given you legal advise as to the complete terms that you are signing and therefore bound to.  An attorney will explain each term of the contract and the ramification of each paragraph.

It is Seller's obligation to draft a Purchase and Sales (P&S) Agreement, which includes all details of the transfer. This is a more thorough contract, and equally as binding as the offer to purchase. The Purchase and Sales Agreement, otherwise known as a P&S, must contain all the same terms of the offer to Purchase contract, but also includes many other provisions not included in the Offer to Purchase Contract.

There is no standard P&S and while most attorneys have the similar language the documents wording varies from one attorney to another. Each document must be thoroughly read by the attorney to point out, and/or correct the phases that may be disadvantageous to their client.

General Role of a Seller's Attorney

1. 1.Confer with the client, and obtain all necessary payoffs of all outstanding liens, mortgages, judgments or executions
   

2. 2.Review the Offer to purchase agreement
   

3. 3.Draft the P&S, make changes and negotiate the terms of the P&S addendum
   

4. 4.Draft the deed conveying the property, and all other necessary forms required at the closing
   

5. 5.Review title report and make sure that title is marketable and free of defect or encumbrances, such as liens, mortgages and judgment.
   

6. 6.If necessary, negotiate with the lien holder to settle for less than the full amount owed
   

7. 7.Review the HUD Settlement Statement with the client showing how the amount and stating reason that each disbursement is made
   

8. 8.Attend the closing and sign all documents on the Seller's behalf. The Seller need not attend the closing unless the Seller prefers such
   

Examination of Title

After the P&S has been signed and financing arranged the Seller's Attorney may order and will examine the title of the property you are selling, going back at least fifty (50) years, and up to one hundred (100) years.

Some of the problems that affect title are as follows:

1. 1.Mortgages
   

2. 2.Taxes
   

3. 3.Mechanics Lien
   

4. 4.Debts of Decedents
   

5. 5.Estate Taxes
   

6. 6.Restriction on use v. Easement
   

7. 7.Bankruptcy
   

8. 8.Estate and Federal Law
   

9. 9.Foreclosure
   

10. 10.Divorces
    

11. 11.Attachments and Judgments
    

12. 12.Rights of Others to use the premises (Easements)
    

The Closing and Settlement Costs

The closing must follow the exact provisions as the terms set forth in the P&S agreement, which is why the attorneys' prior involvement is so important. An attorney reviews and verifies the accuracy of the any adjustments, such as taxes, oil, rents, etc.  The Seller's Attorney verifies all figures on the HUD Settlement Statement and questions any inaccuracies.  Both the Buyer and Seller sign documents at the time of closing.

Closing Cost Expenses

Include: Attorney's Fees; Discharge of Mortgages and liens (recording fees); real estate broker commission (if applicable); tax stamps; discharge tracking fees; Overnight courier fees; Outstanding water/sewer bills, taxes or condominium fees; and any closing costs credits (if agreed upon in the P&S).

This information is intended only to be an introductory guideline because each case is unique and presents different issues.  If you have questions please feel free to contact our office.