There are a number of things which are related to the purchase and sale of real estate which require the professional guidance of those other than your Realtor, namely a legal or tax professional. This sometimes surprises consumers. Once I was discussing one of these areas with a prospective client and she felt quite frustrated and exclaimed, “you know the answer, you just won’t tell me!” That was many years ago, but I’ve never forgotten it. Many Silicon Valley home buyers and home sellers assume that they’ll never need to talk to a tax or legal professional, and if advised to do so, may balk.
So let’s talk about it.
In other states, such as New York, attorneys are very involved in real estate transactions. Here in California, though, that’s not the case most of the time. We call on CPAs and lawyers when there’s a problem or a question which is beyond the real estate licensee’s scope. I’ll provide a few examples.
Holding Title: Probably the most frequent question I get that I’m not allowed (or qualified) to answer is about how people should hold title when buying a home. The purchase agreements we use (both CAR and PRDS) lay it out best and puts it in bold so that consumers don’t miss it:
“THE MANNER OF TAKING TITLE MAY HAVE SIGNIFICANT LEGAL AND TAX CONSEQUENCES. CONSULT AN APPROPRIATE PROFESSIONAL.” (newest revision of the CAR contract, April 2010)
Most title companies have a nifty little chart that summarizes the pros and cons of the various ways in which people can hold title. But neither the escrow officer nor the real estate agent can tell you what’s best for you. We know what’s most common, but that doesn’t mean it is best for you and your particular set of circumstances. So talk to a CPA or talk to a lawyer (or both) if you do your research and are at all unsure of what to choose! (Old Republic Title has a summary of the most common ways to hold title in a downloadable pdf file, which you can access via this link.)
Arbitration: Realtors or other real estate sales people should not tell you whether or not to initial for arbitration. We can explain it, but on that point we cannot advise. (I will share that in my experience, virtually everyone does initial for it, so as a practical matter I explain that it will likely be a counter offer issue in a purchase agreement. Again, though, the ramifications of agreeing to arbitration, or not agreeing to it, are a discussion for a legal professional.)
Distressed sales: In addition to these two areas, right now we are seeing many short sale and bank owned (REO) transactions. The paperwork involved in them is significantly different than in a regular transaction. Often the bank involved has addenda which nullify many of the “buyer protection” clauses in the purchase agreement, for instance, more so with REO sales than short sales, but significant in both cases.
And that’s only the tip of the iceburg. It’s not unheard of that with a bank owned sale, the bank will not provide to the buyer signatures and initials on the contract which make it binding – but they want the buyer to go ahead, put the good faith deposit in escrow, proceed with inspections while the purchase agreement may still be voidable! (In other words, the bank may kick the buyer out of contract.) Because there’s so much increased risk to buyers in purchasing homes in which the bank is the seller (or in some cases needs to approve a short sale), I advise my clients to consult with a good attorney to make sure that they understand what they’re agreeing to and what the actual risk is.
For home owners doing a short sale transaction, even the bank approval letter may be something to run past your attorney as the language used may indicate whether or not you will be open to trouble from the bank later. In my experience, short sale sellers are the most likely to need but not be willing to pursue professional tax & legal advice. Not so long ago I had a client who wouldn’t even make use of low cost or free legal services, insisting instead that he could find everything he needed on the internet. That is really a mistake!
Transactional Nightmares: Finally, if a transaction is hitting a bad, bumpy stretch in which the other party appears to be in default (not performing), your Realtor may suggest that you consult with a real estate attorney if other avenues don’t get the desired results in a timely manner. Every once in awhile, there will be a weird and unforeseeable turn that may put the sale on shaky ground. It may even be that who must (or can) do what may be unclear. Realtors don’t often suggest that home buyers & home sellers call an attorney for a consultation, but if they do, take their suggestion seriously. A good lawyer (or tax professional) can often get you an answer quickly and soon put your mind at ease and help you to establish a game plan, if that’s what’s needed.
In conclusion, if your trusted real estate agent suggests that you seek tax or legal advice from a qualified professional (or any other professional), it’s probably in your best interest to do so. Your Realtor will not get any kickback or payment for the referral – it is made only for your own best interest. While there’s a lot of good information to be found online and in blogs, none of it will be tailored to your precise set of circumstances, so it cannot substitute for a confidential conference with a lawyer or CPA.