Navigating the real estate market can be a complex and daunting task, especially when crafting an Offer to Purchase. Engaging a Massachusetts real estate attorney as a first step in the home buying or selling process can help ensure that the transaction runs smoothly and that the parties are well-protected. In particular, including the appropriately drafted contingencies and ensuring that the correct items are included or excluded at the beginning of the process is crucial to protect the buyer’s and seller’s interests. It is easy to make an error at the Offer to Purchase stage. An attorney can help you to avoid such issues.
Why You Need a Massachusetts Real Estate Attorney
Having a Massachusetts real estate attorney on your side can provide invaluable guidance and expertise when drafting your Offer to Purchase. They can help you navigate the complexities of real estate law and ensure that the appropriate contingencies are included and properly drafted. In addition, they can help you clarify and the inclusion or exclusion of certain items that often cause confusion. Typically, a real estate agent will prepare a draft of the Offer to Purchase. However, having another pair of eyes on that document is always important.
Errors with Inclusions or Exclusions
Clarifying inclusions and exclusions in a real estate transaction is of utmost importance to avoid confusion or disputes. Items such as chandeliers, appliances, mirrors, swing sets, and even storage and parking spaces for condos can often become sources of misunderstanding between buyers and sellers. To prevent such issues, it is crucial that the Offer to Purchase explicitly outlines which items are included or excluded from the sale. Engaging an experienced Massachusetts real estate attorney to help with your purchase or sale can help ensure that these details are clearly defined in the Offer to Purchase.
Important Contingencies in the Offer to Purchase
The following is a list of contingencies that are often found in the Massachusetts Offer to Purchase.
Financing Mortgage Contingency
An attorney can help you draft a mortgage financing contingency clause that outlines the specific type of financing you will obtain, the loan amount, and the date by which you must obtain a mortgage commitment. A mortgage commitment is a contractual letter from a lender confirming they can finance a buyer so long as certain conditions can be met. This contingency ensures that a buyer has adequate time to secure the necessary financing and protects the buyer if the buyer cannot obtain a mortgage commitment. It helps to protect the buyer’s deposits if the buyer needs to terminate for an inability to obtain a mortgage. From the seller’s side of things, the seller’s real estate closing attorney wants to ensure it isn’t too open-ended or unfair.
Appraisal Contingencies
An appraisal contingency specifies whether a buyer can terminate if an appraisal does not equal or exceed the sales price. This protects a buyer by allowing a buyer to renegotiate the purchase price or walk away from the transaction if the property doesn’t appraise at the agreed-upon value. Such contingencies are often strongly resisted by a seller and only seen on a limited basis. This is especially true in a seller’s market. From the seller’s perspective, the seller’s real estate closing attorney must ensure it isn’t too broadly written if it is going to be allowed at all.
Home Inspection Contingencies
A real estate attorney can help the home buyer craft contingencies for appropriate inspections, allowing them to terminate the offer and obtain their deposit back if the inspections reveal concerning issues. The seller’s real estate attorney would want to put in appropriate limiting language upfront so it does not inadvertently create unnecessary uncertainty for the seller.
Title 5 Inspection Certificates
For properties with a private septic system, a real estate attorney can help include a contingency requiring the seller to provide a certificate indicating a “Passing” Title 5 inspection. A Title 5 Inspection must be completed before the closing. It is customarily the seller’s responsibility. This ensures that the septic system complies with state and local regulations and protects the buyer from potentially costly repairs or system replacements after the purchase. The seller’s real estate lawyer may want to ensure that the seller can terminate if costly repairs are needed.
Condominium Document Review Contingencies
When purchasing a condominium, a contingency that allows the home buyer to review the condo documents must be included in order to ensure legal compliance, sufficient funds to operate the project, verify parking and storage rights, and the ability to rent the property in the future if relevant, etc. This protects the home buyer from purchasing a unit with hidden issues or restrictions that may impact the buyer’s use, enjoyment, or investment potential.
Conclusion
Engaging a Massachusetts real estate attorney as a first step for both the buyer and seller is essential to ensure that the Offer to Purchase is properly drafted. By working with an attorney, the home seller or buyer will have the peace of mind that comes with knowing their interests are protected and that they will be better equipped to navigate the complexities of the real estate market. Please contact us if we can assist.
