A real estate attorney potentially fulfills a number of different roles depending on what they are asked to do. When it comes to buying and selling property, a real estate attorney can either represent the buyer or the seller. One attorney cannot do both. And when the buyer needs to borrow money for a mortgage, the real estate attorney who does the closing doesn’t represent either the buyer or the seller, but rather the lender.
While buyers and sellers of property are not legally obliged to use the services of a real estate attorney, it’s generally advisable to do so. When there is a loan involved, the lender’s attorney must handle the closing. For this reason there will often be three real estate attorneys involved in the sale of property, one representing the buyer, another the seller, and the third representing the mortgage lender.
So why is it advisable for both buyer and seller to have a real estate attorney represent them? And why must a lender have an attorney?
Real Estate Attorney for the Buyer
Anyone wishing to purchase a property must do so in a valid contract that is structured properly in terms of the law. A real estate attorney will ensure that the offer made in an offer to purchase is drawn up correctly. If it isn’t, it cannot be enforceable in a court of law.
Even if a real estate agent or broker draws up the contract, it’s important for a real estate attorney to check the contract to ensure it is valid and correct.
Various things that are usually covered include:
- Condition of the property, particularly defects and age of any improvements on the property
- Any liens or easements that may be in place
- Closing dates relating to the proposed sale
- Location of boundary lines
- Drainage capacity of the soil
Real Estate Attorney for the Seller
Even though Georgia law doesn’t require a disclosure form as such, there are various disclosures (by sellers) that should be included in the contract. The most important disclosures relate to existing defects in the house that the seller knows about. Federal law also requires sellers to disclose the use of lead-based paint in the house.
Once an offer has been made, the seller has the opportunity to accept or reject it, or to make a counteroffer and negotiate changes to the contract. Generally a seller will hire a real estate attorney once he or she has the offer to purchase on the table. A real estate attorney will help the seller negotiate the offer, so clearly buyer and seller would not use the same attorney.
Real Estate Attorney for the Mortgage Lender
The final step of any real estate sale is the closing. This is when the seller gets paid and transfers title to the buyer. While some people are able to pay cash for a property, most need to raise a loan of some sort, most commonly a mortgage.
While the seller’s attorney often plays an integral role in the closing, particularly in terms of negotiating closing dates, it is the lender’s attorney who handles the closing. In Georgia, by law a real estate attorney must handle the closing, although the buyer and/or seller’s attorney may be present to ensure everything runs smoothly.
Georgia Real Estate Attorneys
While there are federal laws that govern the sale of real estate, in Georgia there are several state laws that also apply. These include:
- The Georgia Brokerage Relationships in Real Estate Transactions Act
- Georgia Law for the Real Estate Sales Contract
This is another very good reason to use a real estate attorney when buying or selling property in Georgia.
Slepian, Schwartz & Landgaard are real estate attorneys based in Peachtree City who represent clients throughout Georgia. Whether you are buying or selling real estate, or lending purchasers money to buy, we can assist.