Buying a Massachusetts Home? Roles Your Attorney and Real Estate Agent Will Play

If you are buying a home in Massachusetts, having both a real estate agent and an attorney by your side will serve to protect your interests. The reasons are both practical and legal, as this article will discuss.

If you've previously bought a home in another state, you have probably dealt with real estate agents before, but perhaps not with a real estate attorney. Massachusetts is one of few so-called "attorney states" in the United States when it comes to real estate transactions. That means that Massachusetts home buyers and sellers typically have an attorney represent them, in keeping with Massachusetts General Laws Chapter 221, Section 46a. This statute prohibits the unauthorized practice of law by nonlawyers, and real estate transactions are viewed as involving some legal tasks. (In most other states, real estate matters can be handled by a real estate agent and a title company without an attorney's help.)

Let's take a closer look at the different roles that the real estate agent and attorney have in helping you buy a home in Massachusetts.

What a Real Estate Agent Can Do for You in a Massachusetts Home Purchase

The role your real estate agent will play, if you are buying a home in Massachusetts, depends partly on whether you have lined up your own, "buyer's agent," or whether you will be using a particular home's seller's agent to wrap up the deal.

You have the right to be represented by your own real estate agent, known as a buyer's agent. It's a good idea to take advantage of this right, so as to have an agent whose sole duty is representing you. A buyer's agent owes a fiduciary duty to the buyer to act in the buyer's best interests and to keep the buyer's personal information confidential.

If you want a buyer's agent, you'll need to line that person up before you start house-hunting, rather than looking at a house, meeting the agent who represents the seller, and authorizing that person (the "listing agent") to represent you in the same transaction. The latter, "dual agency" approach can result in divided, or at least balanced loyalties on the part of the agent, who might end up negotiating less firmly for your interests as a result.

If you're at all unclear about whether an agent represents you or the seller, however, the matter should be cleared up on paper soon: All real estate agents in Massachusetts are required to present the Massachusetts Mandatory Licensee Disclosure Form to all potential clients prior to meeting or discussing a particular property. This form discloses whether the agent is representing the seller, the buyer, or both.

Here's what a buyer's agent will do for you: show you properties for sale, provide a market analysis to help you determine a home's value, discuss negotiating strategy, and present your offer to the seller's agent.

A buyer's agent will also assist in managing the home inspection, your application for a mortgage, and execution of the purchase and sale agreement, and will attend the final walk-through and closing. A buyer's agent can also provide referrals for home inspectors, contractors, or other professionals you might need in connection with your home purchase.

What an Attorney Can Do for You in a Massachusetts Home Purchase

There are limits to what real estate agents can do in a Massachusetts home purchase. They are prohibited from providing legal advice and may not draft contracts, at least beyond filling in the blanks on standard REALTOR forms.

This is where an attorney can step in. Massachusetts attorneys can draft contracts that address anything unique to the transaction, making sure the legal language reflects the intent of the buyer and seller. They will routinely conduct a title search, in which they examine the public records to confirm the property's legal ownership and ensure the title is free from outstanding claims or liens (or raise the issue if it's not, and make sure any clouds on title are dealt with before the closing). Attorneys also facilitate the closing process, helping review and organize the documents and bring the sale to a successful conclusion.