Despite Florida law not requiring either party to a residential real estate transaction to hire a real estate attorney, doing so has undeniable benefits. While most real estate negotiations in Florida involve only the parties’ real estate agents, hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.
In addition to being able to handle the more complicated matters that develop, an attorney may also help both the buyer and seller of Florida residential real estate to ensure that all contracts are drafted to suit their personal objectives, that they only sign documents that they are legally obligated to sign, that they are not affected by any liens that are discovered throughout the title search process, as well as, a host of other legal issues that regularly arise in real estate transactions. However, to guarantee each party’s rights are being fully protected, an attorney may not represent more than one party to any given transaction.
The Value of having Attorney Representation throughout the Contract Negotiation phase
Every residential real estate transaction in Florida is governed by a Purchase/Sale Contract. These contracts range from simple and straightforward to complexed and riddled with hidden pitfalls.
The most commonly used contract is the “As Is” Residential Contract for Sale and Purchase as approved by The Florida Realtors and The Florida Bar. The Purchase/Sale Contract controls all aspects of the real estate transaction including, the price, important deadlines, any covenants or restrictions involved, disclosure of easements, and acknowledgment of any defects and distribution of liability for such defects. While Florida realtors are presumably familiar with all aspects of these contracts, they are prohibited from providing any legal advice to either party regarding the consequences or outcome of any given contract or negotiation offer.
In Florida, only licensed attorneys are permitted to provide legal services such as reviewing and explaining the effect of signing a contract, advising each party of their responsibilities under the terms of an agreement and identifying the various deadlines that to which each party is held. In addition to providing legal advice, another benefit of hiring a Florida Real Estate Attorney is that s/he may often act as an escrow agent for the buyer’s earnest money deposits required by the terms of the contract. This not only instills confidence in both parties but also allows for a speedy exit from the contract should a problem arise.
Title Companies cannot provide Legal Advice
Another main player in any Florida residential real estate closing is the title insurance company. This company’s role involves examining the title history, or past ownership, and thereafter certifying that the seller is legally permitted to sell the property. While this service is integral to the successful residential real estate transaction, the title insurance company remains an independent third party that represents neither the buyer nor the seller. In fact, unless a law firm provides title insurance servicers, a typical Florida title insurance company may not provide legal advice at all regarding the potential issues that may arise. In this regard, a non-attorney owned title company may not be considered a substitute for a lawyer in a residential real estate purchase agreement.
There are several aspects involved in the title closing process that contributes to its complexity. This is particularly so if the purchase is being financed. In addition to the title, lien and permit searches, Florida real estate closings typically involve the preparation of various documents such as the transfer deed, closing statement, buyer and seller affidavits, as well as, a bill of sale for personal items being included in the purchase.
Soliciting the assistance of an attorney will not only ensure that the process takes place quickly and without unnecessary delays but may also protect the specific interests of both the buyer or the seller. Only a Florida real estate attorney is licensed to review the closing document package and give legal advice to either the buyer or seller on matters such as tax prorations, title search findings, survey etc.
Lenders, Banks and other Mortgagees
While cash purchases are usually limited to the conduct and interests of the buyer and seller of the given contract, financed purchases add both another party’s interest to be considered, as well as, a separate layer of complexity for the buyer and risk for the seller.
It is imperative that a financed buyer is advised of the terms of the particular loan being issued to purchase the subject property and is provided with all federally and state required notices by the Lender. The seller, on the other hand, must also be advised of his rights and obligations in the event the sale falls through due to unmet requirements of the Lender. Involving an attorney in financed sales serves to further protect the interest of each the buyer and the seller by explaining the terms of financial documents to buyers and the implications of the loan on the sale, as well as, providing guidance to the seller in the event the sale falls through.
A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance. If you intend to purchase or sell residential real estate in Florida, it is wise to speak with a Florida real estate attorney to ensure that your rights are being protected and you are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only your attorney can provide guidance and advice that is truly in your best interest.