Buying and Selling a Home

Buying and selling a home is a major transaction. The sale price alone should indicate how extraordinary such a transaction is when compared to the financial decisions that are part of everyday life. The complexities of the transaction also make it quite extraordinary, exciting and dangerous. Mistakes in the sale or purchase of a home can haunt you for years to come. On the other hand a well handled transaction can provide joy and happiness for years to come.

Steps in buying a home

  • Contracting- signing the initial contract and agreeing as to all changes to the contract, and making necessary deposits
  • Applying for a mortgage
  • Inspecting the home
  • Agreeing on repairs or improvements, if necessary
  • Searching the legal title and obtaining a survey
  • Preparing documents to close title
  • Closing title
  • Post closing follow-up by the buyer's attorney
  • Recording the deed and mortgage
  • Clearing liens and title exceptions
  • Obtaining title insurance

The Buyer's Attorney's Role

  • Preparing, reviewing, negotiating and explaining the contract of sale
  • Assisting you to obtain a mortgage
  • Helping you with home inspections and negotiations related to the inspections
  • Assuring that you obtain good title to the property
  • Helping you resolve problems relating to the transfer of occupancy, closing date and possession.
  • Determining closing adjustments and preparing closing documents
  • Recording the deed and mortgage and canceling any existing mortgages or liens

The Seller's Attorney's Role

  • Preparing, reviewing, negotiating and explaining the contract of sale
  • Gathering important title information for the buyer's attorney and for the preparation of closing documents, helping to expedite matters and avoid problems
  • Resolving title problems revealed by the title searches
  • Helping you with negotiations related to home inspections.
  • Helping you resolve problems relating to the transfer of occupancy, closing date and possession.
  • Determining closing adjustments and preparing closing documents

Contracts

The contract of purchase and sale determines the rights of the parties to the entire transaction. It describes the property, sets forth the financial terms of the sale, states when the closing will take place (estimated), sets forth rights and procedures regarding inspections, along with several other time limitations and procedures that are to take place prior to closing.

As with most contracts, it is just as important to consider what is left out of the contract as it is to determine what is included. For example, the absence of a clause on "risk of loss" would mean that the buyer assumes the risk of any damage to the property between the signing of the contact and the closing of title. This would mean, for example, that if the property were damaged by fire after the signing of the contract the buyer would still have to buy the damaged property and pay the same price for the property despite its damaged condition. The typical "risk of loss' clause will place the risk of loss on the seller, thus replacing "common law" with "common sense".

Condition of the property

Contracts often refer to the purchase as being "as is". This would not be satisfactory to a buyer unless the buyer were completely aware of the condition of the property. For this reason contracts should provide the buyer with the opportunity to inspect the property to determine its true condition. The buyer would then be protected by being allowed to refuse to purchase the property if the buyer and seller cannot agree on making repairs to the property. The seller would be protected by being allowed to refuse to make repairs (with the risk that the seller may need to find another buyer).

Inspection clauses in contracts are of great importance. They must be reviewed carefully since the rights of the parties are dependent upon them. Your attorney can help you protect yourself in the preparation of a contract with a satisfactory provision regarding the home inspection. Then after the contract is signed the attorney can help you to obtain an inspection and to exercise your rights and options regarding the repair of the home.

Buyers inspect homes for physical defects, infestation, radon contamination, and the condition of the plumbing, heating, electrical, septic or sewerage systems. By such inspections Buyers can determine the facts. Then the parties can either make changes to the condition of the property, adjustments in the price, or accept the property with the knowledge of its present condition.

Fees and charges

Many fees and charges must be paid as part of the sale or purchase of real estate. Your attorney should be able to provide you with guidance regarding the amount of these charges and assist you in minimizing your expenses. The expenses include legal fees, title charges, mortgage charges, escrows, sale commissions, insurance premiums, taxes, recording fees and the costs of inspections. Knowing about these expenses can help you plan best for meeting your financial obligations.

Mortgages

The buyer will often need a mortgage to purchase a home. The contract should provide that the buyer is given an adequate amount of time in order to obtain a mortgage commitment. The seller should be willing to wait while the buyer attempts to obtain the necessary financing, assuming that the seller has received reasonable assurances that the buyer is likely to be able to qualify for the mortgage. If the buyer cannot obtain financing the contract will be declared void and the seller will be free to sell to someone else.

Once the mortgage commitment has been obtained your attorney will help you meet any conditions which the lender requires in order to purchase the home.

Legal Ownership

The deed you receive from the seller is your "bill of sale". This serves to transfer the sellers' interest in the property to you. However you must have a complete title search to determine exactly what property is being conveyed and whether or not it is subject to any restrictions such as easements, building restrictions, liens or the rights of others. The contract of sale should provide that if the title is not satisfactory you will not be required to complete the purchase. More importantly the searches will allow you to correct title defects and provide you and your lender with title insurance.

Closings

At the closing of title all legal documents are signed to convey property to the buyer. The mortgage documents are also signed to establish the rights of the lender. After the closing the buyer's attorney records the necessary documents and removes the liens on the property ( such as the lien of the seller's mortgage by paying same off and canceling the mortgage with the county recording officer.

Conclusion

Closing are complicated transactions. You should seek the advice of an attorney and other experts to assist you. You can protect yourself against expensive mistakes which far exceed the cost of expert guidance.

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Law Offices of James H. Walzer
103 William Street
Boonton, New Jersey 07005

Telephone: 973-299-1990
Fax: 973-299-0063
Email: jameswalzer@gmail.com