Buying a home or property is not as straightforward as some people think. To the untrained eye, the legalities surrounding the purchase of real estate can become very daunting. Persons dealing with a host of already jarring costs associated with their purchase, may not be keen on enlisting the services of an attorney to represent them in a purchase. However, in acquiring a property, having the guidance and expertise of a competent attorney makes all the difference. This article will explore the role of the purchaser’s attorney in the sale of an interest in real estate, and the valuable services the attorney provides throughout the process.
Legal Expertise
Experienced real estate attorneys will possess a deep understanding of the complex legal framework that governs the sale/purchase of real estate. The purchaser’s attorney should help the client to navigate the law, ensuring that the purchase is in full compliance with all legal requirements, and also that the purchaser’s best interest is protected and secured in the purchase. This expertise extends to reviewing and drafting contracts, conducting title searches, and resolving legal issues that may arise during the transaction. Real estate transactions can involve a multitude of legal documents, contracts, and regulations.
Due Diligence Inquiries
At the outset of a sale/purchase transaction, the attorney for the purchaser ought to make inquiries into the details of the property and the transaction, and take instructions from the client to best act on the client’s behalf. Certain pre-contract issues that a purchaser’s attorney will inquire into include:-
- 1. The particulars of the Vendor – the vendor’s capacity to contract, the nature of the proprietorship/interest to be sold, and documentary support of these;
- 2. The type of property being purchased- whether it be an unimproved vacant lot, a commercial or residential building, or a furnished or unfurnished property. Each type of property will come with special considerations;
- 3. The terms of payment- the purchase price, deposit amount, and completion period;
- 4. Transaction costs- standard closing costs, and any other special costs or fees;
- 5. Special conditions to be performed by either party to the transaction; and
- 6. Any statutory or planning matters to be considered, such as zoning.
Title Search
In the sale/purchase transaction, the attorney should conduct checks at the Titles Office to ensure that, in the case of registered land, the certificate of title for the property is in the name of the vendor, and to identify any potential encumbrances that might affect the property.
Negotiation and Agreement for Sale
One of the most critical aspects of the purchase is the agreement for sale which lies at the centre of the entire transaction. The purchaser’s attorney ought to review this document, and explain and negotiate the terms of the agreement for sale on the purchaser’s behalf, in order to put the purchaser in the best position to complete the purchase.
Statements of Account
Statements of account should be prepared by the vendor’s attorney, and, where the purchaser’s attorney is handling any funds on behalf of the purchaser, the purchaser’s attorney. These statements account for all monies paid, and to be paid by the purchaser, or the purchaser’s attorney, on the purchaser’s behalf.
Contingency Planning
Real estate transactions do not always go as planned. Unexpected issues, such as a breach of the agreement for sale, can derail the process. By having an attorney represent you in the purchase, they can help you to create contingency plans, and be prepared to address such situations to ensure that your interests are protected. Where a sale has to be cancelled, the purchaser’s attorney will assist with unravelling the sale as smoothly as possible.
Completion
The final step in a purchase is completion, which will include the purchaser being registered as the new proprietor of the property, in the case of registered land. The purchaser’s attorney will oversee this process, or carry out the registration, depending on the terms of the agreement for sale.
Whether you are a first-time buyer, or an experienced real estate investor, it is highly advisable to have an experienced attorney represent you in the purchase of property, to assist you with making the right choices, and ensuring all the legalities surrounding your real estate investment are sound.
Nsizwe Stewart is an Associate at Grant, Henry & Rhooms, and practices in the firm’s Estates & Probate Department. She may be contacted at nsizwe.stewart@ghrlegal.com or www.ghrlegal.com. This article is based on Jamaican law, is for general information purposes only, and does not constitute legal advice. Should you wish to seek legal advice, you may schedule a free consultation with our offices.
