Do You Need a Real Estate Attorney to Buy a House?
Real Estate Attorneys Provide Key Benefits
Florida Law does not require either party in a residential real estate transaction to hire an attorney, however doing so provides key benefits for everyone involved. Most importantly, an attorney with a keen eye can help you avoid expensive legal battles down the road.
Hiring a Real Estate Attorney Can Help You Avoid Title Issues
A real estate attorney can help to identify and avoid potential title issues.
In one situation, a client contacted me the day before a closing on a million plus investment property/future home site. The realtors, title company and in-house title company attorney all said an old $600,000 mortgage still tied to the property was inconsequential.
I stepped in to agree with the client that this was a problem that could create huge problems if that mortgagee came around to enforce the mortgage. Together we insisted that this title defect be cleared prior to close. That is just one example of something that could have become a sizeable problem if the sale had been pushed through.
In Florida, if a property is not properly recorded, a bonafide purchaser (a subsequent purchaser of the property who pays value) may potentially prevail in a title dispute over the party that did not properly record the title. What is important is that the subsequent purchaser has neither actual nor constructive notice of the other party’s ownership at the time of the conveyance. That means if you purchase a home and fail to properly record the property, someone else (who is unaware that you are the actual owner of the property) may have the ability to claim legal title over the property if they are to record it before you do.
An attorney can be an asset to clients that are interested in purchasing property by ensuring that the current title to the property their client is looking to purchase is recorded, and that the property is clear of liens. By doing this, an attorney can help ensure that upon purchase of the home, their clients are able to record their ownership of the title, and take full ownership of the home, without potentially running into issues with the title down the road. Further, if a client is looking to sell a property that may not have been properly recorded, an attorney can assist the client in ensuring that they get the property properly recorded and ready to put on the market.
An Attorney can Help you Determine the Most Suitable Type of Property Ownership
An attorney can also help you avoid headaches concerning the manner in which your property is titled.
Many make the mistake of adding their children to their title. This can affect eligibility for homestead as well as place your property at risk to creditors, including a spouse of a child who divorces. Whether you are a homeowner looking to sell the property, a potential buyer, or a realtor looking to protect your client’s interests, having an attorney review documents such as deeds can be invaluable. Additionally, only qualified attorneys should prepare deeds. If prepared by anyone else, including the title company, there is still a risk of missing a legal obligation. It is best to have your attorney review the deed prior to closing.
An attorney will be able to identify the type of deed you are working with, explain the difference among these deeds, and describe how they vary in their scope of title assurance. As a buyer, you will want a full general warranty deed, which carries the following protections: assurance that the seller owns the property and has a right to assign it, that there are no encumbrances, and that the seller will insure you against these protections (typically done through title insurance). A quitclaim deed on the other hand offers none of these assurances (or covenants of title) and should only be used if there are specific reasons to do so.
Working with an Attorney Regarding Property
Working with an attorney to review one’s property documents prior to conveyance can be simple if the attorney has the right skill-set.
Here are a few things you should ask your real estate attorney before hiring them:
How familiar is the attorney with documents such as deeds? - Are they able to conduct quick title searches?
Does the attorney charge a flat fee for reviewing the documents relating to property conveyances, or do they charge by the hour?
What is the attorney’s availability, and does it coincide with the potential client’s timeline?
When preparing to make the largest investment of one’s lifetime (i.e. buying property) clients owe it to themselves to go the extra mile in order to ensure their dream home will not come with unwanted legal issues that can lead to preventable headaches in the future. In a real estate transaction, the attorney will be the only advocate there just for you without an interest in the transaction. Yes, it will cost you money, but in the end, it may save you more.
If you or someone you know is interested in hiring an attorney to review their real estate contracts, be sure to reach out to us at email@example.com or contact us below.
More information regarding my real estate area of practice can be found here.