Many homeowners decide to try the FSBO route to save the commission charged by a realtor. When it comes to buying and selling real estate in Florida, one of other questions I’m frequently asked is whether the transaction requires an attorney. In some states the presence of an attorney is a legal requirement. Fortunately, Florida isn’t one of them. That being said, before you rush off to close a sale on your own, there are a few things you need to know about selling real estate without a lawyer.
Who Needs a Lawyer?
Everyone knows that hiring a lawyer is expensive. They routinely charge hundreds of dollars an hour and seldom explain the intricacies of a contract or negotiation in plain English. Heck, if you’ve ever read a contract, you know it’s almost like trying to understand a foreign tongue. However, if you don’t have an attorney on your team, you had better know a thing or two about contract law. If you don’t you could find yourself in a lopsided deal come the closing.
Every real estate transaction has its own set of quirks regarding rights, restrictions and environmental considerations, just to name a few. Get it right and you have purchased the rights to a property that you can do with as you please. Do it wrong and you could soon find yourself buried in red tape as local and state ordinances restrict your right to tear down, add to or improve your newly acquired property. Local and state laws could force you to remove illegal additions erected by the previous owner. Or they could require you to bring an existing structure up to code.
Federal environmental laws could force you to leave your property as is when you wish to clear your lot, erect a fence or add an in-ground swimming pool.
Even the locals have been known to get fooled by not being completely cognizant with municipal, county, state and federal regulations that apply to their newly purchased property. Don’t think for a minute that your realtor or mortgage broker are required to tell you about ordinances that you could soon come to regret.
What happens if you wish to buy a property that is part of a trust, a short sale, a foreclosure or a bank-owned property? These types of sales are anything but ordinary, requiring that you know how to review the title work and negotiate with bank officials.
Deposits are another issue that can come to haunt you. If for some reason you don’t qualify for financing or there is some other problem with the transaction and your deposit isn’t held in escrow, there is a good chance you could lose it.
What if the property is inhabited by someone other than the owner, requiring you to evict the tenant?
The law regarding landlord and tenant in Florida is quite complicated. If you knowingly or unknowingly buy a property with a tenant, do you know how to handle issues like rent or security deposits? Are you aware of your obligations and liabilities to the property, as well as to the tenants or their guests? Do you know if the tenant has any claims against the current landlord? If not, the previous owner’s problems could quickly become your problems.
Real estate sales involve multiple parties, including the buyer, seller, perhaps a realtor, a banker, a title agent and the buyer’s attorney. If you aren’t well-versed in reading and understanding page after page of mortgage documents, seller documents, and closing disclosure statements, you might like to consider hiring a real estate attorney.
Not only does he or she understand these documents and the entire process of buying and selling real estate in the State of Florida, but an attorney is also experienced at spotting discrepancies, omissions and addendums that favor the buyer. They can also negotiate with all parties to the sale to make sure that you get the best deal and not a raw deal.
Here are a few other points to consider:
Do you know which documents you are not required to sign at the closing?
If you don’t, the buyer, the realtor or another party could try to get you to sign a document that could abrogate some of your rights once you take possession of the property.
Where is your deposit going to be held and what could legally cause you to lose it?
What would you do if you discovered an issue with the title?
What is the seller required to disclose in writing prior to the sale? What happens if you discover something that wasn’t disclosed?
What happens if the buyer tries to cancel the sale within 3-days of the closing?
Are you familiar with Florida’s Homestead Tax Exemption Law?
The law provides qualified homeowners with as much as $50,000 reduction from the assessed value of the property, as well as protection from all non-lien creditors. However, depending on your status, you may qualify for only one or none of the protections offered by the state.
What’s the real cost saving of foregoing a lawyer at the closing? While hiring an attorney could cost you in the short run, what it could save you over the long haul could be substantial.
How familiar are you with the Florida Realtors form, including the Residential Contract for Sale and Purchase and the As Is Residential Contract for Sale and Purchase? There are a number of clauses and riders contained in the FR that list the personal property and fixtures to be left behind by the seller, the down payment, the financing, the inspection, the title and the closing date. Get these right and the transaction should be smooth sailing. Get even one wrong and the sale along with your deposit could be in jeopardy.
Understanding the meaning of disclosures could prove costly, especially if you didn’t realize that the HVAC unit is on its last legs or the electrical system will shortly need to be upgraded. There can also be disclosures about such things as deed restrictions structural issues and infestations that if not addressed before the closing could come to haunt you once you take possession.
The bottom line is whether you are buying or selling a property in Florida, unless you have a thorough understanding of the legal process, representing yourself could be a case of having a fool for a client.