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Why you DO need an attorney for residential purchase transactions

Posted by Nina Whitehurst | Aug 27, 2021 | 0 Comments

I get this question all of the time - do I HAVE to hire an attorney to help me purchase a home (or a residential lot). The answer is there is no law that requires it, but it is a really good idea, and the cost in pretty nominal compared to what it will cost to fix problems that arise later due to not having legal representation.

Here are some actual cases that have crossed my desk in just the last two weeks (as of this writing):

  • Buyer, not represented by an attorney, purchased fully furnished model home from Developer and agreed to lease it back to Developer for 10 months for continued use as Developer's model home.  Buyer was dismayed to learn, not long after the closing, that someone was actually living in the house (bed not made, food in the refrigerator, etc.)  Buyer contacted me at that time.  When I asked for a copy of the lease, Buyer said there was none.  It was verbal.  A verbal lease for fewer than 12 months IS legal, and a lease implies an exclusive right of OCCUPANCY, so it would appear that the Developer did nothing wrong by moving in.  Buyer's mistake was not getting the understanding IN WRITING that the home would ONLY be used to show to prospective buyers of other homes to be built.  An attorney would have insisted on a written lease agreement and surely would have clarified the use restriction in that lease agreement.
  • Buyer, not represented by an attorney, purchased a lot on which to build a home.  The Board of Realtors form contract was used.  Buyer checked the box waiving all contingencies.  The contract also included a pre-printed warning that there might not be water to the property and that it is up to Buyer to investigate that.  Buyer was dismayed to learn, after the closing and after doing a lot of work and spending a lot of money to prepare the property for construction, that the local utility company could//would not provide water to the property due to the distance involved.  An attorney would have helped the buyer do some due diligence on the availability of utilities before committing to purchase the property.
  • Buyer, not represented by counsel, entered into a "land sale contract" and paid $10,000 down and a couple of monthly payments in the amount of approximately $400 each before learning that Seller did not own the property!  Buyer also did not obtain title insurance.  Seller is now nowhere to be found.  Any attorney worth his or her salt would have made some effort to verify that the seller actually owned the property.  I would have done some of my own investigation AND would have recommended that Buyer obtain title insurance.

In each case the cost of hiring an attorney would have been nominal compared to the cost of fixing the problem later (if it can be fixed).

Do you HAVE to hire an attorney to make one of the most significant purchases in your life?  No, but it is a REALLY good idea to do so.

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...

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