Buying property can be exciting, but it can also be daunting. There are specific processes that must be followed, as well as forms that must be filled in and documents that must be completed exactly the right way. At the end, the real estate closing will result in the property being transferred to the purchaser.
Most people need to borrow money to buy a home, and this can be a formidable prospect in itself. Again, there are processes and documents involved, as well as negotiations and agreements to be concluded.
While the process of buying property is basically the same in all US states, local law does have an impact. For instance in Georgia (and in South Carolina) the closing must be conducted by a licensed GA real estate attorney, who is effectively a real estate specialist. Furthermore this attorney must be physically present at the closing, and according to a Georgia Supreme Court order, “in control of the closing process from beginning to end”. This was as a result of an attorney having participated in a real estate closing telephonically, which the Court found “ethically improper”.
In some other states, only attorneys can give legal advice relating to the closing. Real estate attorneys must also draft all the legal documentation. But a “non-attorney” may handle the closing.
A GA Real Estate Attorneys Role at the Closing
The attorney who handles the real estate closing represents the lender and not the buyer or the seller.
While buyers and sellers often consult with a real estate attorney of their own, to do title searches, check documents (including the closing documents) or get advice, usually the closing attorney handles the closing alone, without input from other legal professionals, or any other attorneys being present. But there is nothing to stop the buyer and/or seller having their own attorney with them at the closing.
The federal law that covers the closing is the Real Estate Settlement Procedures Act (RESPA), and this legislation applies in addition to the local Georgia real estate license law that the Georgia Real Estate Commission administrates. Chapter 47 of the local state law specifies the process involved for first mortgage loans. The real estate closing attorneys role is also specified in this chapter.
Amongst other things, it is the Georgia real estate closing attorney’s responsibility to:
- Ensure all documents are completed correctly
- Ensure deeds, affidavits, and all other documents are delivered to the right people
- Prepare the settlement or closing statement
- Disburse money in terms of the closing statement
Georgia law also requires the closing attorney to prepare a detailed statement that shows all disbursements and receipts from the buyer and the seller; and this must be given to both parties, and possibly the broker if there is one involved.
So even though the closing attorney represents the lender, he or she has a responsibility to complete the closing efficiently and accurately in the interests of all parties involved.
Normally the closing attorney explains the contents of the documentation to the buyer and seller at the closing, before everything is signed and sealed.
The team of attorneys at Slepian, Schwartz & Landgaard has vast experience in all the legal services that relate to real estate. So if you are buying or selling property, or are in the business of lending money for mortgage loans, we are here to help you.