In some states, real estate attorneys are a regular, legally required part of the homebuying process. Even in states where this isn't the case, however, an unusual or complex transaction might need an attorney's assistance. After all, if you don't use an attorney and the transaction later goes awry, you'll still have to hire one, at much greater time and cost. Save yourself the headache by working with a lawyer to structure the deal, not salvage it.
When a Real Estate Transaction Is Complex Enough at the Outset to Need a Lawyer's Help
What's legally unusual? In some cases, you will know from the beginning that the transaction will be a complex one. In any of the following situations, for example, a lawyer's help will be crucial:
- You can't make sense of the community interest development agreements and documents being handed to you (which lay out your multiple responsibilities as well as rights with regard to a community or project), such as CC&Rs, a co-op proprietary lease, or a new home contract drafted by the developer.
- You need to structure a private loan from a relative or friend to make the purchase.
- You purchase the house jointly with other people and need to structure a co-buyer agreement and document how title will be held, in case you later part ways.
The presence of easements on the property is another classic example of when a lawyer's help might be warranted. For example, let's say you've learned that the home's seller and next-door neighbors have a verbal easement allowing the neighbors to access their car's parking spot through the seller's driveway. If you are the home's buyer, you might want to know exactly what the neighbor's rights are; and the limits on those rights, just in case. You'd naturally wanted to have this arrangement reduced to writing. That writing is very the sort of thing a lawyer should really draft, to make sure nothing is left out.
When Complexities Might Arise Mid-Transaction Requiring a Lawyer's Help
Complexities might also arise in the course of making a purchase offer or conducting negotiations with the seller, including during the escrow period. Getting an attorney involved in any of the following situations will be a wise move:
- You'd like an escalation clause that gives you the right—within limits—to meet or exceed any competing offer that the seller receives, and your boilerplate contract doesn't contain such language, and your agent isn't familiar with this possibility.
- You've arranged with the seller to rent the home for an extended period, such as a year, before you're obligated to buy it.
- The seller will let you move some of your belongings into the home's garage or basement before the closing date, but both of you want to clarify that it's your property and how any damage to it will be dealt with.
- You'd like to make sure that a current tenant in the home will be moving out before closing.
- You're willing to let the seller retain possession of the home for a time beyond the closing, but you want to make sure the seller will pay you a fair rent.
- Legal claims have been made against your prospective house that must be satisfied by the time the property is sold.
- Problems show up on the title report: for example, the driveway is shared by the house you want to buy and the neighboring house, but that isn't reflected in the title.
Most home purchases don't need a lawyer's assistance. Nevertheless, if yours presents any unusual situation or complexity, hiring a lawyer can be a cost-effective way of preventing later disputes and litigation.