Are you planning to buy or sell a property in Massachusetts? It can seem at times that there are many cooks in the kitchen during a real estate closing. Many people can be involved, and understanding who is responsible for what can be confusing. Understanding the real estate transaction process and the roles of the different parties involved is crucial for a smooth, successful transaction.
This comprehensive guide will explore the responsibilities of the lender’s attorney, seller’s attorney, buyer’s attorney, and real estate agents. By the end, you will understand how these parties work together to close the real estate transaction.
Lender’s Closing Attorney
The lender’s attorney can also be the buyer’s attorney. Dual representation in this context is very common and the norm for most residential real estate transactions. The lender’s attorney is also known as the closing attorney. If there is no lender, in other words, a cash transaction, the closing attorney is the buyer’s attorney. The major responsibilities of the lender’s closing attorney include the following.
Title Examination and Review
The lender’s attorney is responsible for ordering and reviewing the title examination. They identify any potential problems and work to resolve them with the seller’s attorney. The seller is responsible for delivering clear title to the property.
Municipal Lien Certificate (“MLC”)
The lender’s closing attorney orders and reviews the municipal lien certificate which provides the property’s tax history. This ensures that all municipal debts are accounted for and resolved at closing.
Plot Plan Analysis
A plot plan review helps identify boundary issues that may impact the property like a shed over the property line. This is called an “encroachment.” The lender’s attorney orders and reviews the plot plan and again coordinates with the seller’s attorney who must address any problems that may arise.
Settlement Statement and Adjustments
The lender’s attorney prepares the Settlement Statement, or Closing Disclosure, which is a spreadsheet that itemizes the fees and charges associated with the transaction. They also calculate the financial adjustments between the buyer and seller, as set forth in the purchase and sale agreement. Both the home buyer and seller will have their own separate closing costs for which they are responsible.
Lender’s Closing Package Preparation
The lender’s real estate closing attorney reviews the closing package from the lender for completeness, ensuring that all necessary documents are in order and ready for the closing.
The lender’s closing attorney arranges for the recording of essential documents such as the deed and mortgage, ensuring that the property transfer is properly documented in public records.
Title Insurance Policy and Certification
They prepare the title insurance policies and certification of title for the buyer, providing assurance of clear ownership.
Homestead Declaration Preparation
To safeguard the buyer’s interest, the closing attorney prepares a Declaration of Homestead on a primary residence, providing protection from certain creditor claims.
Paying off Liens on the Property
While the seller’s attorney often obtains the payoff amounts for the seller’s mortgage, or other liens on the property, the lender’s closing attorney will hold back these amounts from the sale proceeds at closing. The lender’s closing attorney will be the party who physically pays off any liens on the property at closing and disburses all of the checks. The lender’s attorney is also responsible for recording the releases for any such liens.
Seller’s Real Estate Attorney
The seller’s real estate lawyer is responsible for drafting the deed, which transfers property ownership from the seller to the buyer.
Purchase and Sale Agreement Negotiation and Drafting
They negotiate and prepare the first draft of the purchase and sale agreement, outlining the terms and conditions of the property transaction. This will be based on the Offer to Purchase. If there is no attorney working with the seller, this responsibility will fall to the seller’s real estate agent.
Protecting the Seller Interests in Case Breach
In the event that the buyer breaches the contract, the seller’s attorney takes appropriate action to protect their client’s interests.
Title Problem Resolution
If any title problems arise, the seller’s attorney works to remedy these issues on behalf of the seller. They typically coordinate with the lender’s closing attorney to resolve such issues.
Home Buyer’s Real Estate Attorney
The buyer’s real estate lawyer reviews the deed to ensure it accurately reflects the purchase and sale agreement terms and properly transfers ownership. Of primary importance is ensuring that their clients’ tenancy is correct and has a proper legal description.
Purchase and Sale Agreement Negotiation and Revision
They negotiate and revise the purchase and sale agreement to protect the home buyer’s interests in case the seller breaches the contract or the buyer cannot obtain financing. The home buyer’s real estate lawyer should ensure that any non-standard provisions should be stricken from the purchase and sale agreement.
Protecting the Home Buyer
The buyer’s attorney takes appropriate action to protect their client’s interests in case of seller breach or financing problems.
Real Estate Agents
The real estate agents each have specific responsibilities as outlined below.
The seller’s real estate agent (the “listing agent”) lists the property for their client and helps locate suitable properties for buyers, matching their needs and preferences.
Offer and Purchase and Sale Agreement Drafting
The buyer’s real estate agent prepares the initial Offer to Purchase, which outlines the terms and conditions of the transaction. Both the seller’s real estate agent and the buyer’s real estate agent will negotiate the Offer to Purchase terms.
Price Negotiation and Inspection Issue Resolution
Both real estate agents play a vital role in negotiating the property price and assisting in resolving any issues arising from property inspections.
Final Utility Readings Coordination
The seller’s real estate agent makes arrangements to obtain final utility readings for any municipal utilities. These can include water, sewer, and electricity. All outstanding balances need to be paid at or before closing.
Condominium Association Certificate Acquisition
If the property is a condominium, the seller’s real estate agent obtains the 6(d) certificate from the condominium association, which confirms that the unit owner is current with condo fee payments and assessments.
Smoke and Carbon Monoxide Certificates
The seller’s real estate agent also obtains the smoke and carbon monoxide detector certificate from the local fire department. These are valid for 60 days and are required for property transfer in Massachusetts.
For a Massachusetts real estate closing, understanding the roles and responsibilities of the lender’s attorney, seller’s attorney, buyer’s attorney, and the real estate agents is crucial for a successful real estate transaction in Massachusetts. Each party is critical in facilitating the property transfer and protecting their client’s interests. By working with experienced professionals and clearly understanding the process, you can confidently navigate the complex world of real estate transactions. Remember to consult with skilled professionals to ensure your interests are well-represented. Please contact us if we can assist.