Real Estate Law

Whether buying or selling your home, we will help guide you through the process so that you can confidently move through your transaction knowing that we are looking out for you every step of the way. 

Residential Real Estate Attorney

My goal is to help you through the sale or purchase of your home, and make that as stress free as possible. I will protect your interests in what may be the largest financial transaction of your life. I will communicate with you throughout the process, from contract through closing, to make sure that you are getting the best possible service.

Our Approach to Real Estate Law For Home Buyers

Stages of a Transaction & How We Will Be There For Home Buyers

Real estate transactions generate a great deal of written communications; Contracts, attorney review letters, inspection reports, negotiation letters, title commitments, etc. Many of these items will require your review and comment. My policy is for you to see everything that is happening with your file as soon as it happens.  I distribute everything as email attachments. All letters are forwarded via email to our clients and to the realtors. This includes items drafted within my offices as well as everything that comes in from outside sources. We turn everything in to a pdf file and email it to you upon receipt.

 

Buying a Home

When you’ve decided that you would like to own a home the first step is to determine how much home you can afford. Meet with a mortgage professional to review your income, assets, credit, etc. to find out. There are many mortgage companies out there, and your choice of lender may determine whether your transaction is a dream or a nightmare, so choose wisely. Whether a person, bank, or internet provider, the choice depends upon many factors, and should be made with care. 

When interviewing mortgage lenders, keep in mind that each time a lender checks your credit score, the score may drop slightly. Therefore, first choose your lender, based on their estimated interest rates, fees and upon your interview of the representatives. After you have chosen the lender, then have that lender run your credit score so that he can quote you the actual rates based on your credit.

 

Finding a Home

Once you have found a home and make an initial offer, your realtor will forward the contract to my office. I will work diligently with your agent to insure a smooth transaction. Unlike some attorneys, I welcome your agent’s involvement and will keep the agent advised during all of the steps in your transaction. 

Attorney Review
Attorney Review is the first step, and is an opportunity for the attorneys on both sides of the transaction to review the Contract form, with the blanks filled in by the agent. We can request any changes we feel are in your best interests. Once the requested changes are discussed, negotiated, and finally agreed-upon, the contract will be out of attorney review and is then considered a binding contract.

The attorney review process can be confusing. The realtor will tell you that it is three days, but it is actually longer. The three-day period is only the time during which the first Review letter must be sent. The Contract is not binding on either party until the Review is concluded. This means that it is important that the Review be conducted, and concluded, as quickly as possible.

The closing date in the contract is generally what we call an “on or about” date, it may be moved so before you schedule movers, or other plans that cannot be changed, make sure you consult with our office to get a firm date.

Inspections
The inspection process is the next step. The inspection contingency is intended to protect you from serious problems with the home. This would include structural defects, wood destroying insects, safety hazards and environmental hazards. The inspection contingency does not apply to minor maintenance items, cosmetic defects, or items which are simply old, if they nevertheless are in proper working order. You should have your inspections performed as quickly as possible once the contract is out of attorney review. The contract will have a time limit for doing so. You will choose and hire the inspectors and your realtor will handle the logistics of access to the home at the appropriate time.

The most common inspections are the structural inspection, wood destroying insect inspection, pool and septic inspections (if applicable), underground oil tank sweep and radon test. Based on the results of the initial inspections you may also wish to have further testing performed, such as asbestos tests, mold tests, chimney test, lead paint tests. If the home has well water, it is the seller’s responsibility to have a well water quality test performed. It is also the seller’s responsibility to have any municipal inspections (smoke detector certificate, certificate of occupancy) performed and to obtain the certificates.

Your inspector will send the reports to you and should also copy your attorney. You will review the reports with your attorney to discuss the issues, if any, that you may ask the sellers to remedy prior to closing. Your attorney will send copies of the reports to the seller’s attorney along with a list of your repair demands.
The sellers will respond to your demands and the response could be that they will address all issues, or that they will address none of the issues, or something in between. The parties will negotiate, hopefully, to a mutually acceptable agreement. If defects are found, and if the seller refuses to address the defects, the buyer may have the right to cancel the Contract and would be entitled to the return of any down payment.

In some cases, the parties may agree upon monetary credits in lieu of actual repairs. This could be advantageous to both parties.

One common misconception in real estate transactions is the meaning of “As-Is”. In most cases, even if a transaction is “As-Is” the buyer is still entitled to the usual home inspections. If a serious defect is found, the seller is not legally obligated to make the repair, but the buyer will still have the right to cancel the Contract.

Mortgage Financing
The Contract will contain the date by which the buyer is required to obtain a mortgage commitment. If the commitment is not obtained by this date the seller could cancel the Contract or extend the time.

Your lender will complete a mortgage application with you and will ask for documentation regarding your finances. Be prepared to provide bank statements, pay slips, W2’s, tax returns, etc. Be prepared to explain any unusual deposits to your accounts. Keep copies of everything you provide and be prepared to resubmit those items. Stay on top of your loan officer and on the loan processor to make sure that the process keeps moving forward.

Part of the mortgage underwriting will be an appraisal to confirm the value of the home. The appraisal is arranged by the mortgage lender, but will be at your cost. The appraiser should contact your realtor for access to the home. If the house appraises less than the purchase price, you may be able to cancel the contract.

Once you have applied for your financing, do not make any changes to your financial status without speaking with your loan officer first. Do not change jobs, do not make any major purchases, do not take out any new credit, and do not allow any bills to go 30 days beyond their due dates. Your lender will do credit and employment verifications shortly before closing.

When choosing a mortgage professional there is more to consider than rates alone. Choose a mortgage lender that will give your transaction the attention it deserves; someone that you can reach when you need them and that will be with you through the entire transaction.

Closing Preparation
Prior to the closing you will do a final walk-through of the home. This is to ensure that the sellers have completely moved out, that any agreed upon repairs have been completed, and that the home is in ‘broom clean’ condition and all appliances are in working order. If there are any problems at the walk-through, call your attorney right away. This will give him/her a chance to have the issues addressed before everyone arrives for the closing.

Also prior to closing you will have to go to your bank to arrange for the funds for the closing. The settlement agent cannot accept a personal check, so you will have to arrange either a wire transfer or a teller check. Your attorney will give you the amount needed as well as the wire or check instructions as far in advance of closing as possible. This usually works out to be the day before closing, depending upon when the mortgage lender provides the settlement figures.

Be sure to have home insurance (hazard insurance) arranged and effective as of the day of closing. All buyers and their spouses must attend unless told otherwise and photo identification is required. If there is a reason why you or your spouse cannot attend, then a power of attorney can be prepared, but it will have to be approved by your lender so you cannot wait until the last minute otherwise the closing may have to be postponed.

Remember that if a mortgage deal seems too good to be true, it probably is. I have seen many cases where lenders that quoted the lowest rates upfront will try to add in extras fees and costs at closing.

The Closing
The closing itself occurs in two parts. The first part is the closing of the buyer’s mortgage. As the mortgage documents are highly standardized, and non-negotiable, the buyer is not expected to carefully read the documents at the closing. The attorney will provide a brief description of each document, along with its legal ramifications, as each document is presented for signature.

The second part of the closing is the closing of title, during which the seller’s attorney will provide a Deed which transfers ownership of the home to the buyers, along with other necessary documents. The buyers will get keys to the home and the sellers will receive the funds due to them.

If everyone has done their job properly the closing itself should be the easiest part of the entire transaction. We will have all necessary documents, including the settlement statement, prepared and reviewed in advance of closing. We will also have the Deed and other seller documents reviewed and approved by the title company in advance of closing. Once the closing is concluded, the home is yours.

Our Approach to Real Estate Law For Home Buyers

Stages of a Transaction & How We Will Be There For Home Sellers

If you’re thinking about selling your home, we can smoothly help you through that transaction. Below, we walk through the real estate law considerations for the many steps of a transaction:

Attorney Review

Once signed by buyers and sellers, the contract is forwarded to the attorneys. Upon receipt of the contract I will contact you to discuss and to answer any questions you may have.

Both attorneys will send letters to request contract changes. Don’t be alarmed when you see that the Contract is “disapproved”.  This is the standard beginning to attorney review. Once the changes are agreed-upon, attorney review is concluded and the contract is binding.

 Three things you need to know about Attorney Review:

– Attorney Review is not limited to three days, but the first Review letter must be sent within three days or the Contract will be binding as written.

– The Contract is not binding on either party until Attorney Review is concluded.

– Once Attorney Review is concluded any further changes can only be made by mutual consent.

I will make sure to respond promptly to the first letter and make sure you get the best terms possible while also making sure you do not lose the deal.  

The closing date in the contract is what we call and “on or about date” unless stated otherwise, It can be moved by either party, so before you schedule movers, or any other event, make sure you consult our office.  If you have a property that you are buying at the same time, we will try to coordinate so that you can do both deals the same day.

 

Home Inspections

Seller’s responsibility:

It is your responsibility to have any municipal inspections (smoke detector certificate, certificate of occupancy) performed and to obtain the certificates.

If you think there will be an issue then this should be done early in the process, after the attorney review period is concluded and any of the buyer’s inspection issues are resolved.

If the home has well water, you are required to have a water quality test performed.

Buyer’s Inspections

The buyer has the rights, which is sometimes waived, to arrange for the structural inspection, wood destroying insect inspection and radon gas test. 

The buyer may also decide to complete additional testing such as a property sweep to determine if there is an underground oil tank, swimming pool and septic system, asbestos tests, mold tests, chimney test, lead paint tests.

Negotiations

The inspection contingency is not intended to apply to minor maintenance items, cosmetic defects, or items which are simply old, if they are in proper working order. 

Sometimes the contract may provide that the sale is “as is” and there will be no repairs or credits given. The buyer may have the right to inspect in that case, but not the right to ask for repairs or credits. 

You are not legally required to make repairs, however if defects are found, and you refuse to address the defects, the buyer may have the right to cancel the Contract and would be entitled to the return of the down payment. In most cases the parties are able to come to a mutually acceptable arrangement.   In some cases, the parties may agree upon monetary credits in lieu of actual repairs. Any such credits must be approved by the buyer’s mortgage lender.

Closing Preparation

Back title

It would be helpful if you can provide a copy of the title insurance policy that was issued upon your purchase of the property. 

We will obtain a mortgage payoff if you have an existing mortgage or line of credit.  

Prior to the closing, usually that day, the buyers have the right to conduct a “walk through” which should be scheduled with your agent.  The home should be empty and in broom-clean condition for the walk-through.  

All utilities should be active at the time of the walk-through.  Do not have the water, gas, or electric service terminated until after the closing.

Closing Documents

Prior to the scheduled closing date, you can pre-sign your closing documents, which consist of the deed and some other forms. 

Prior to the closing we will go over all of the closing figures, including mortgage payoffs, all expenses of the sale, and the final net proceeds that you can expect to receive when the sale is complete.

The Closing

At the closing of title, the conveyance documents will be delivered to the buyer’s attorney and the keys to the home will be given to the buyers. Your proceeds will be available at the time of closing and may be in the form of a check or a wire transfer of funds directly to your account. Although you do not need to be at the closing, you should be available by telephone in case of any last-minute issues or questions.

Our Approach to Real Estate Law For Home Buyers

Schedule a Consultation

Let our experience, dedication and compassion work for you. Contact Geraldene Sherr Duswalt, Esq. to set up an appointment. All telephone calls and e-mails will be answered promptly.

There is no charge for the initial telephone call and all calls will be returned by an attorney.

New Jersey Office

Law Office of Geraldene Sherr Duswalt
1812 Front Street
Scotch Plains, NJ 07076

New York Office

Law Office of Geraldene Sherr Duswalt
576 Fifth Ave, Suite 903
New York, NY 10036

Hours

Mon - Fri: 8am - 6pm
Weekends flexible by appointment