Hiring an Attorney for Your Real Estate Purchase

If you are a transplant to New York it may come as a surprise to you to learn that real estate transactions involve not only real estate agents, but also attorneys to represent the buyer, seller,and (in some instances) lender.  This is because New York law mandates that only attorneys can practice law and specifies that the important aspects of a real estate deal are included under that umbrella.  However, hiring an attorney is also in your best interest, regardless of whether you are buying or selling property, since the attorney performs so many important functions during a real estate transaction. Specifically, a real estate attorney is there to review the contract for sale, review title, prepare (or review) the deed and other important legal documents involved in the transaction, and represent your interest during the closing.

Your attorney will first become involved in your real estate transaction after you have selected a property to purchase (or someone has elected to purchase the property you have for sale) in order to review the Sales Contract.  During this phase your attorney ensures the contract is in your best interests, that you understand what you are committing to, and that the contract is legally correct. 

Once the Sales Contract is approved by the attorneys for the buyer and the seller it’s time to review the title documents.  Reviewing the title documents is especially important for a buyer since this process ensures that the seller owns the property (and thus can legally sell it) and that there are no undisclosed liens attached to the property.  Further, the attorney will review the chain of title (the people who owned the property before the seller) to ensure that the property was legally passed from person to person in previous transactions.

Once the attorney determines that the title documents are sufficient, she will also review the other legal documents including the Deed, the tax documents, any necessary affidavits, etc.  During this process the attorney’s job is to ensure that the documents are correct, and that title will pass from the seller to the buy in a legally binding fashion.  If you are purchasing a property with another person, such as your spouse, your attorney will also discuss how you will take title to the property.  For example, a couple may take title to a property as joint tenants with right of survivorship, which means that in the event one spouse dies the title to the property will pass to the surviving spouse.

Finally, and perhaps most importantly, your attorney will represent your interests during a closing.  For example, during a purchase of a home with a mortgage, the attorney would help the buyer understand the legal commitments involved in loan documents.   Or, if there was some issue with the property during the final walk-through, the attorney would help you understand your legal rights and negotiate a favorable solution. 

If you are new to the State of New York it may seem unusual to hire an attorney to purchase (or sell) property but choosing an attorney who will diligently represent your interests throughout the process is one of the best investments you can make.    

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Environmental Due Diligence: Do Your Homework before You Buy

for-saleEvery now and then we’re visited by a new client who discovers he bought contaminated property and needs legal help.  In almost all of these cases, our client bought the property without first getting advice from an environmental lawyer or conducting adequate environmental due diligence on the property.  We’re always glad to help, but the frustrating part is that if that client met with us before buying the property, we could have worked with him to help manage the risks and potential liabilities that come with the purchase of potentially contaminated properties.

So what is environmental due diligence?  In simple terms, it is a process by which trained professionals assess a property for any potential risk of environmental contamination.  Most lenders require environmental due diligence be completed before they will issue commercial loans, but those who are self-funding purchases should strongly consider undertaking this due diligence, also.

The process typically begins with a Phase I Environmental Site Assessment.  The Phase I assesses the current and historical uses of a property and examines local, state and federal records to identify past uses the property that may present an environmental risk.  Often times, this assessment is sufficient for prospective buyers and their lenders.  Sometimes properties will require a Phase II Environmental Site Assessment, which is a more intrusive assessment that includes soil and groundwater sampling from areas on a property that are deemed most likely to have contamination.  The depth and scope of the process typically turns on the property that’s examined.  A property that once had a gasoline service station probably will require a Phase II because of the higher likelihood of contamination.  A commercial property with office space and a satisfactory Phase I assessment typically would not.

There are major benefits to conducting environmental due diligence prior to a purchase.  Due diligence can uncover actual or suspected contamination, which may lead the prospective buyer to cancel a purchase, renegotiate the purchase price or—with the assistance of a knowledgeable environmental lawyer—negotiate protections in the purchase agreement, or determine a property’s brownfield eligibility to assist with cleanup costs.  Under the All Appropriate Inquiries rule, a properly managed assessment can grant protection for bona fide prospective purchasers from CERCLA liability, even if contamination is found after the property is purchased.  That is a potentially significant measure of protection as site cleanups can be very costly.

If you are looking into purchasing a property and need legal advice, our firm is glad to meet with you to discuss the due diligence process and the protection it affords.

Photo: www.susanfidler.com