Real estate lawyers are typically hired for either of two types of functions: (1) to litigate real estate-related cases, or (2) to handle the legal aspects of a real estate transaction. Real estate lawyers are essentially mediators who step in when real estate deals go south. Some real estate lawyers specialize in residential or commercial real estate, while others focus on specific issues like subdivision and zoning laws. To explore this concept, consider the following real estate lawyer definition.
Definition of Real Estate Lawyer
- An attorney who either litigates real estate cases, or handles the legal aspects of a real estate transaction.
What Does a Real Estate Lawyer Do
Real estate lawyers can provide vital assistance in real estate transactions, whether a property is being bought or sold. The lawyer evaluates any offers that the seller makes, or that the buyer receives, in order to ensure that the parties’ interests are properly protected, and that everyone’s responsibilities in the transaction are clearly defined and followed.
While there are non-legal service providers that claim to provide the same level of legal services for less money, it may be worth it to some people to pay extra for a real estate attorney. Attorneys are held to a higher standard, in that they have certain educational and licensing criteria that they must meet, as well as insurance that covers any damages should they make an error, or accidentally steer a party in the wrong direction.
Transactions conducted through non-legal advisors may not necessarily be this secure, since they are not required to have these kinds of protections in place. It is generally not advisable for people engaging in real estate transactions to go it alone, since the forms involved with such transactions differ greatly depending on the state in which the transaction takes place.
Sometimes the use of a real estate attorney is not up for discussion, as some title insurance companies and mortgage lenders actually require a qualified attorney be engaged. Examples of real estate lawyer responsibilities in a typical real estate transaction include double-checking the title to ensure that it is free from liens, and that it is not already titled to someone who may later come back and claim the property. He must also ensure that all of the proper documents are completed and signed, and ensuring that the deal closes as expected.
Real estate attorneys can be as involved or detached as the parties want them to be. If either of the parties is skeptical of the attorney’s qualifications, they can ask the attorney to provide a written description of the details of his anticipated work, as well as the fees he will charge, before proceeding with the transaction.
Education of a Real Estate Lawyer
A real estate lawyer, like any other lawyer, must obtain a juris doctorate degree from an accredited institution in order to practice real estate law. Some law schools even allow students to customize their education to primarily practice real estate law. A real estate lawyer is also similar to other lawyers in that his education never ends; he may be required to take Continuing Legal Education (“CLE”) classes annually, though some states require proof of CLE only every three years.
Real estate lawyers who are just starting out may also need several years of real estate transaction preparation and contract negotiation under their belts, in addition to their education, in order to obtain employment. Real estate attorneys may join their state’s real estate lawyers association, or become members of the American Bar Association’s Real Property, Trust and Estate Law division, in order to network with other lawyers. Such memberships also give legal professionals access to a great deal of information and training resources.
Real Estate Lawyer Examples of Transaction Responsibilities
As expected, a real estate attorney’s role shifts depending on whether he is participating in the buying or selling of a home. Examples of real estate lawyers’ responsibilities for each kind of transaction are outlined below.
Buying a Home
If a party is buying a home, and is working with a real estate lawyer on the purchase, the lawyer should:
- Help the buyer understand the purchase contract.
- Ensure that there are no liens, easements or covenants registered against the property.
- Prepare and file all of the necessary legal documentation.
- Evaluate any adjustments, including taxes owed and the cost of utilities, prior to closing.
- Attend the closing and review all of the papers the buyer is required to sign.
- Set up title insurance to protect the buyer from any potential problems.
- Ensure that the buyer receives a valid title that is only subject to the liabilities that the buyer has agreed to.
Selling a Home
If a party is selling a home, then examples of real estate lawyer responsibilities include:
- Review or prepare the purchase and sale agreement, including negotiating the terms.
- Prepare the deed and, if one is necessary, a power of attorney.
- Correct any issues with the title that may come up.
- Attend the closing and reviewing of the documents the parties are required to sign.
- Arrange for a security deposit transfer.
- Arrange for insurance certificates to be provided, if necessary.
Real Estate Law
Real estate law dictates who is allowed to own and use a parcel of land and the buildings that are built upon it. Real estate law is multi-faceted, and a real estate attorney may be necessary for situations involving any of the following areas:
- Residential or commercial real estate.
- Real estate that is owned by one person, but that is used by another person through a rental agreement.
- Local laws that control the buying or selling of real estate.
- Land being owned by more than one person.
- Land being passed through family members through estate planning instruments.
- State and local government rules concerning land usage.
There are also several subset practice areas within the field of real estate law:
- Tax Law – This branch of real estate law helps buyers understand how the tax code affects their ownership or transfer of real property.
- Landlord Tenant Law – This branch covers all aspects of renting real property, including leases, renting, and evictions. This law applies to both residential and commercial properties.
- Estate Planning – This branch covers the transfer of property as a result of pre-planning within an estate. Estate planning generally refers to the creation and implementation of wills, trusts, and other tools.
- Insurance Law – This branch covers various types of insurance utilized in real property transactions, including homeowner’s insurance, which homeowners must carry in order to protect their property from several kinds of damage, such as floods, fires, and other natural disasters.
- Accidents and Injuries – This branch covers a homeowner’s liability for any injuries that someone might sustain while on the homeowner’s property.
Real Estate Lawyer Malpractice
Malpractice is defined as negligence or misconduct on the part of a professional, such as a doctor or a lawyer. A client can take legal action against an attorney if the attorney makes a serious error, or fails to meet a standard of conduct and, as a result, the client is injured or damaged because of the attorney’s error.
Legal malpractice is divided into four categories:
- Negligent errors
- Fee disputes
- Claims filed by either a non-client or an adversary
- Negligence in the professional relationship
An example of real estate lawyer malpractice might occur when an attorney advises a client to sell his property so that it will not factored into the client’s divorce settlement; then the attorney buys the property from the client for half of the property’s market value. This negligence in the attorney’s professional relationship goes against the ethical expectations of an attorney, and may be considered real estate lawyer malpractice.
If a real estate lawyer malpractice lawsuit is filed, then all of the dealings that the attorney had with the client who filed it will be closely examined to see if the attorney was fair and honest throughout the entirety of his professional relationship with that client. The lawyer must also be able to show that the client did not receive any preferential treatment, and that the client received the same benefits as would anyone else who would have hired the attorney in a similar situation. Attorneys are responsible for the actions of their associates, secretaries, assistants, and partners, and they may be held individually liable for the actions of any of those people who work under the umbrella of the firm.
According to the American Bar Association, the number of legal malpractice claims filed against real estate lawyers during the three-year period of 2008-2011 neared 11,000 – 2,500 more than the number filed against personal injury attorneys in the same period. This is significant because personal injury had previously topped the list for malpractice lawsuits. This may be attributed to the fact that, when clients are engaged in real property transactions involving hundreds of thousands of dollars, they are quick to place blame when something goes wrong.
Related Legal Terms and Issues
- Binder – an agreement by which property or liability insurance is granted pending the sale of the property.
- Covenant – an agreement made via a lease, deed, or other legal contract.
- Easement – the right to use someone’s land for a particular purpose.
- Lien – the right to possess property that belongs to someone else until the debt that is owed by the latter is paid in full.