As a real estate attorney, I am often approached with the question of whether it’s necessary to hire an attorney when purchasing a new home. After all, there is no requirement in the state of Florida that a homebuyer needs to be represented by counsel. Plus, there are several other professionals involved in the home buying process—the realtor, the home inspector, the loan officer and the appraiser (if financing is being sought)—that should be looking out for a buyer’s best interests. While it is true that these professionals will be operating on behalf of the buyer, it must be stated that their roles are limited based upon their expertise, be it sales and marketing, determining the structural integrity of the home, or establishing a fair market value for the property. But what happens when a question arises regarding the contract? This is where hiring an attorney can be invaluable. Expert guidance can be provided should a question arise during the home buying process that other professionals are not equipped, or licensed, to answer.
The Many Moving Parts of the Home Buying Process
Attorneys are experts in contract law and interpreting the contractual obligations for all parties involved in a real estate transaction. Often, buyers will sign a contract to purchase a new home without a full understanding of their contractual obligations. This is especially common in a hot real estate market like the one we’re currently seeing. For example, a buyer will fall into a bidding war for a desirable property and sign a contract with an increased earnest money deposit that will make the offer more attractive. However, the buyer needs to first understand when the deposit is due, and second, what contingencies exist in the contract should he wish to terminate the contract and request a refund of his earnest money. On more than one occasion, I have taken calls from individuals who had unknowingly placed a nonrefundable earnest money deposit down on a property only to find out the house had multiple structural problems upon inspection. Unfortunately for the buyer, they had already signed the contract and had to forfeit their earnest money despite terminating the deal due to the physical problems with the property. Had they called before signing the contract, this could have most likely been avoided.
Another question that arises is what are a buyer’s remedies should a seller either fail to sign the deed and close the transaction, or if the seller attempts to extract additional concessions from the Buyer right before closing? Both scenarios would likely give rise to calling the seller in default. In Florida, it is commonly found that a buyer is entitled to one of two remedies in the event of a seller default: (1) the buyer can receive a full refund of its earnest money deposit and terminate the contract, or (2) the buyer can sue the seller for specific performance (i.e., a lawsuit to force the sale of the home). Deciding between these two remedies can be difficult. Are there other homes on the market that the buyer could pursue, or is this home the buyer’s dream home that they do not want to walk away from? If it is the buyer’s dream home and they want to pursue specific performance, does the contract allow for the buyer to claim its attorney’s fees as a part of the lawsuit? The answer to these questions will impact the buyer’s decision-making process. As such, a buyer needs someone advocating on their behalf to interpret the contract and guide them to make the correct decision.
Another major piece of the home buying process is understanding whether the title to the property being sought is clear. Standard residential contracts throughout Florida have contingencies built in requiring the seller to provide clear title, but a buyer should be aware that simply hearing that title is “clear” does not mean that there are not several other issues potentially affecting the recorded history of the property and restricting the use of the property. Is the property located in a homeowner’s association with recorded covenants and restrictions? Are there mineral rights reserved by prior owners? Are there additions to the home being considered by the buyer where the building restrictions need to be reviewed? All of these are common problematic scenarios that are, unfortunately, discovered after closing. Resolving them after closing can be expensive and time-consuming. However, the cost of retaining an attorney to review the title to the property to uncover any potential problems prior to closing is often nominal compared to curing a problem down the road.
Conclusion
Purchasing a new home is often the largest financial transaction people make. You want to be confident that all aspects of the transaction have been carefully reviewed prior to signing the contract and closing on the purchase. Hiring a competent real estate attorney is a simple step in the home buying process that will give you additional peace of mind that your contract is fair and that the title to the home is not unfairly or unlawfully restricted.