Use attorney in non-brokered home purchase

By Steve Tytler Herald Columnist

Question: We are interested in purchasing a home privately, that is, without the seller using a real estate broker.

We would need to agree on a price and will ask for a structural inspection. What suggestions do you have for oversight of this transaction to protect both the seller and us?

We need to sell our home as part of this agreement; both homes are “free and clear.”

Are there individuals who will, for a fee, direct us through the needed paperwork and legal steps?

Answer: Yes, there are professional individuals who will handle the paperwork and legal steps in a real estate transaction, namely attorneys.

That may seem obvious, but you’d be surprised how many home buyers and sellers fail to seek legal advice in real estate deals involving hundreds of thousands of dollars.

When buyers are struggling to scrape together the cash to cover the down payment and closing costs for the purchase of a home, they hate to spend an extra couple of hundred dollars on attorney fees. But in my opinion, that is money well spent, especially when you don’t have a real estate agent to represent your interests.

Even when the buyer and seller are represented by agents in a transaction, it’s wise to have the purchase and sale contract reviewed by an attorney to make sure you have not inadvertently overlooked a clause that adversely affects your rights. An attorney may also suggest additional language that strengthens your rights in a contract.

Although I have suggested using an attorney in all real estate transactions for many years, I realize that this does not happen very often in the real world. But at least the buyers and sellers who are working with real estate agents are using standardized forms prepared by attorneys for the multiple listing association that are designed to protect all parties in the transaction and minimize legal disputes.

As a licensed real estate broker, I have occasionally helped my mortgage clients by drawing up a purchase and sale contract for them at a nominal fee when they were buying a home from a “For Sale By Owner” seller. In those cases, I was simply acting as a facilitator and not representing either party.

The advantage is that I am using all the latest multiple listing association forms, which are constantly reviewed and updated by several attorneys, so the buyer and seller each have some level of legal protection.

You may be able to find a local real estate agent who is willing to do this for you, and you don’t pay thousands of dollars for this service. For example, I typically charge $1,000 to write up a purchase and sale agreement between a home seller and buyer after they have verbally agreed on the terms, and that fee is usually split 50/50 between the buyer and seller.

However, I still think that you are better off hiring a real estate attorney because for roughly the same amount of money you would be able to get some legal advice to protect your interests rather than just hiring somebody to fill out the forms for you.

Some escrow companies are owned by attorneys or have an attorney on staff, so you may be able to get legal representation and escrow service in a one-stop-shopping situation.

Regardless of who draws up the paperwork, be sure to use an escrow company to close the transaction. A home buyer should never give any money directly to the home seller. All money and paperwork should go through the escrow company, which acts a neutral third party to ensure that the buyer and seller each get whatever they are entitled to in the purchase and sale contract.

And the home seller should purchase an “owner’s” title insurance policy to guarantee that they are transferring clear property title to you.

Steve Tytler is a licensed real estate broker and owner of Best Mortgage. You can email him at features@heraldnet.com.