Once you decide to buy or sell real estate, whether it be a new home or the sale of an old one, or any other kind of property such as a multi-family in which you may or may not reside, what should you do first? There is only one good answer to this question and it is that you should start with an attorney who is experienced in real estate practice.

Whether you are buying or selling, there is no way you can safely sort out all of the complexities and conditions which may be involved in the preliminary offer and which will surely be involved in the more elaborate Purchase and Sale Agreement. Both parties should be aware that the "preliminary offer", so-called, creates binding obligations even though they may think they are not bound until the later signing of a negotiated, full length Purchase and Sale Agreement. For this reason, at least, you should consult an attorney before you dare to sign anything.

The Seller needs an attorney in order to be properly advised at all stages of the transaction, to have required documents (such as the new deed) correctly prepared and to supervise the closing to be sure of receiving payment in good funds of all that the Seller is entitled to have in sale proceeds. Sometimes, unexpected issues arise for which professional help is needed. A prudent Seller should never assume that this is a "do-it-yourself" proposition.

The need for an attorney is even more evident if you happen to be the Buyer. Most Buyers readily assume that the person who presumes to be the Seller is in fact the record owner of the property, that he has a good and clear title, and has the right to sell. To rely upon such assumptions without a professional search of the public land records is to invite financial disaster. Each parcel of property must be searched by going back in the records through previous owners spanning a period of at least 50 years and often more in order to find out the correct legal description of the property (size and dimensions) who has rights of ownership or otherwise in the property, and what are the various liens, encumbrances, easements, restrictions, etc. which may be a part of the legal package of property rights and obligations you want to buy. This search is an extremely complicated process which requires the attention of a licensed attorney who has the necessary knowledge and experience, who can give you the advice you need and who can provide title insurance for you, and who can discuss with you any special circumstances affecting your purchase. Your attorney will be sure that any Purchase and Sale Agreement you sign contains a condition that the Seller shall deliver a good and clear record and marketable title, and then your attorney will examine that title to determine whether or not the Seller can perform.

Many other issues need to be addressed in the beginning, some in the preliminary offer and all in the Purchase and Sale Agreement that follows. There are environmental hazards such as lead paint, radon, asbestos and chemical contamination of the soil. Physical condition of the premises including evidence of wood boring insects, waste disposal, water supply, underground oil tanks, encroachments, restrictions on use, access and zoning are just a few of the questions which your attorney must ask and answer satisfactorily. Both Buyers and Sellers need extensive professional help in addressing and resolving issues such as these.

Sometimes issues arise during the course of negotiations, or even later at the closing, when the Buyer and the Seller may disagree. The condition of the property, or the discharge of liens, or monetary adjustments, or compliance with restrictions, are just a few examples among many that could be given where the transaction will succeed or fail depending upon what the attorneys are able to negotiate for their clients. When you consider that the average cost of even a modest residence these days can be two or three hundred thousand dollars and frequently much more, the cost of legal services is low, usually measured by hundreds of dollars rather than thousands. To worry, for example, about spending $1,500 on a $300,000 purchase is really to be penny-wise and pound foolish. If you can afford to buy the house in the first place, you cannot afford to be without an attorney at your side.

Traditionally, attorneys are the principal providers of closing services. They know best what to do and how to do it. This is why Buyers, Sellers, and Mortgage Lenders continue to engage lawyers. They are needed because all that they do in a real estate transaction constitutes the practice of law. Only a licensed attorney has the education, training, experience, facilities, and the legal authority to handle these responsibilities. Non-lawyers who try to perform this kind of service are engaged in the unauthorized practice of law which the Massachusetts courts have held to be unlawful.

To be sure that you get what you pay for, you will want to spend your money wisely and this means that you should begin, before you do anything else, with consulting a real estate lawyer.

Robert J. Hoffman, Esq.
44 School Street, 6th Floor
Boston, MA 02108
Phone: 617-523-0666
FAX: 617-523-6502
E-Mail: Rhoffman@hoffmanatlaw.com

(Editor's Note: Robert Hoffman is a past president of the MCA and a recipient of its highest honor, the Richard B. Johnson Award.)