Massachusetts is one of the few states in the country that is considered an “attorney state” for residential real estate transactions. That means that home buyers and sellers in Massachusetts typically have an attorney represent them (unlike other states where most matters are handled by a real estate agent and a title company). Attorneys involvement is required by Massachusetts General Laws Chapter 221, Section 46a, which prohibits the unauthorized practice of law by non-lawyers.
If you're planning to sell your Massachusetts home, you'll want to know when what roles your real estate agent and attorney will play.
As part of helping you sell a home in Massachusetts, your real estate agent will provide you with a market analysis to determine the market value of your home, list your home for sale in the MLS, and provide marketing and other advice related to the sale. Your agent may also make recommendations regarding repairs, staging, and other updates to assist with the sale of the home.
A Massachusetts seller’s agent (also known as a listing agent) will also inform you of certain legal obligations – such as the requirement to have working smoke and carbon monoxide detectors, the obligation to fulfill the requirements of the lead paint law for homes built prior to 1978, and inspection requirements for homes serviced by private septic systems.
Your seller’s agent will also present all offers to you and negotiate offers on your behalf. He or she may also make recommendations or offer advice if the buyer requests repairs or price adjustments after receiving a home inspection report. A listing agent has a fiduciary duty to the seller to negotiate in your best interests and keep confidential your personal information.
Real estate agents in Massachusetts, however, are prohibited from providing legal advice. They may not draft contracts beyond filling in the blanks on standard REALTOR® Association forms, such as an Offer to Purchase or a Purchase and Sale Agreement. An attorney licensed to practice law in Massachusetts must draft any addenda or significant changes to these forms.
In addition, real estate agents may not draft a deed or any other legal document related to the sale of a home. Real estate agents should not provide other legal advice such as your legal rights and obligations under a purchase contract, zoning advice or opinions, or advice regarding title matters.
For a home sale in Massachusetts, the attorney will provide legal advice, starting with drafting a Purchase and Sale Agreement (referred to as the P&S) or revising the P&S provided by your real estate agent. The attorney will also aid in negotiating the terms of the P&S with the buyer’s attorney and drafting the deed that will transfer the title of your home to the buyer.
In the event that a dispute arises between you and a prospective buyer during the sale process, your attorney will provide advice as to your legal rights and obligations under the P&S and/or any other contract you may have signed with the buyer. In addition, your attorney will provide advice regarding the resolution of any title (ownership) issues or disputes that may arise.
A Massachusetts seller’s attorney will typically attend the closing with you or attend on your behalf. If your attorney attends on your behalf, you will be required to sign the deed in advance, as well as a Power of Attorney allowing the attorney to sign any closing documents on your behalf. Your attorney will review any closing documents prior to you signing them, as well as provide legal advice during the closing process.
Massachusetts home sellers should find an attorney when they decide to list their home for sale. While the attorney typically does not get involved until a P&S is signed, it’s easier to have someone lined up in advance. Sellers should look for an attorney who is experienced in residential real estate transactions.
Your real estate agent can make a recommendation if you’re not sure where to start. However, make sure that the lawyer you hire has your interests protected and not those of the real estate agent who made the recommendation. Ask for references from past clients if you are unsure.
Attorneys may charge an hourly rate for representation during a real estate transaction or they may charge a flat fee. They should provide you with a written fee agreement that spells out what the fee is, what services are covered by that fee, and what services are not included.
There are a number of legal issues that can arise during the sale of your home in Massachusetts. Since your real estate agent cannot provide legal advice, it is important to have an attorney represent you in the process.