Legal Advice for Home Sellers

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Legal Advice for Home Sellers
Advice for Home Sellers

Some things you just cannot wing it or go it alone, and this is very true when you are ready to sell your home.  Even if you are a detail-oriented person, chances are the whole process will not transpire without some issues taking place, and, sometimes it is those small issues that become big issues if there is not an attorney on board from the beginning.  You might already have a top family law attorney in New Jersey that could assist you, or you might want to choose counsel whose primary practice is real estate transactions.  An NJ family law attorney will be able to make sure that you do not get taken advantage of; whatever your choice, do consider getting an attorney at the outset to assist you in covering all issues that may crop up in conjunction with selling your home.

Aid of an attorney

The closing process, especially for “newbies”, can be confusing and complex as to both the buyer and seller.  Those expected to be present at the closing include the buyer and seller, their respective attorneys (if applicable), the title closer (the representative of the title company), an attorney for any lending institution and the real estate broker.  As in any complicated procedure, there is bound to be last-minute squabbling about delivering possession and personal property, or the adjustment of various costs, such as taxes, so woe is you, if you are the only person there without a lawyer because your rights may be at risk.  So, consider that, in essence, the most-important reason to be represented by an attorney would be the conflicting interests of the parties.

In some cases, the quarrels are not just present at the closing, but throughout the entire process, as buyer’s and seller’s interests may be at odds, not only with each other, but even with those of the professionals involved in the sale.  The broker generally serves the seller, and the lender is obtained by the buyer, and, just like you, they both want to see the deal go through as this is how they will get paid.  But, as skilled as both of these folks may be by virtue of having been involved in countless real estate transactions, neither of them may provide legal counsel.  This is why you are strongly recommended to have counsel on board because it is the respective lawyers for the buyer and seller that will serve only their own clients’ best interests.Home Sellers

Prepare for the worst

Issues may crop up at the beginning… The transition from putting the house up for sale, through the closing, could be a long, painstaking process, but the savvy seller has the foresight to hire an attorney to help smooth out the process.  For example, the seller should have the advice and guidance of an attorney with regard to the brokerage agreement.  Though the brokerage agreement is often a standard or boilerplate form, all of its delineated terms should be explained to the seller, then revised or tailored to the sale at hand.  After the brokerage agreement has been revised and executed by the parties, an attorney with his keen legal eye can simply review the agreement to  determine if the agreement was indeed properly signed.  An attorney’s review of the agreement might discover, for example, that the seller may have been liable to pay a brokerage commission even if a sale does not occur, or to pay more than one brokerage commission.   So, if the agreement allows the seller the right to negotiate on his or her own behalf, for example, you may be able to avoid this problem.  Thus, an attorney can explain the effect of multiple listings and has the ability to negotiate the realtor’s rights if the seller withdraws the property from the market, or can’t deliver a good marketable title.

As you proceed through the selling process, still more issues could incur… Once the brokerage agreement is in place, there are other issues that may crop up that can be answered with ease by your attorney.  One such question or issue would be the tax consequences of the transaction.  To a seller, the tax consequences are critically important, especially if the seller stands to make a sizable profit from the sale.  Thus, an attorney is instrumental in dispensing advice as to whether the seller may take advantage of tax provisions allowing for exclusion of capital gains in certain circumstances.

Getting the purchase agreement in place.  The purchase agreement is considered the most-important document in the real estate transaction.  Just like the brokerage agreement, there are standard boilerplate forms and these often require some tweaking.  An attorney is helpful with regard to the purchase agreement because after analysis of the document, your attorney can explain the form and any changes or additions that might benefit both the seller as well as the buyer.  Since even an experienced seller, acting on their own behalf, may not grasp all the concepts of the document, or miss an important aspect of the agreement, an attorney is used to flyspeck every detail of a contract – that is just what attorneys do and they excel at it.

And don’t forget the mortgage document… As to the types of mortgages, an attorney can review and explain the options available as to mortgage loan commitments/loans and on the advice of counsel, the seller can make the best decision as to this aspect of the sale.  But, once that purchase agreement is signed, the parties must ensure that the state of the seller’s title of the property is established to both the buyer and financial institution’s satisfaction.  A title search may be required for the transaction to move forward.  An attorney would be instrumental in performing the title search, thus ensuring there are no legal restrictions which will impair the seller’s ability to sell the property.

The end

Like any good movie or book, the closing signifies the end or the process or ordeal, depending on how you look at it.  Hopefully you sought the advice of a lawyer who made the process seamless from the time you decided to sell right up through the closing.

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