Is It Necessary to Have an Attorney at Closing in Florida?
Florida law does not require that parties to a real estate purchase hire an attorney during the closing process. Many real estate transactions are completed by negotiations between the buyer and seller via their two real estate brokers. However, hiring an attorney may help to expedite the process, as well as protect the real estate buyer's and seller's interests.
The Closing Process
Closing a purchase and sale of real estate can be a complicated process, particularly if a mortgage is involved. The typical Florida real estate sale may require preparation of numerous documents: a purchase and sale contract, a real estate transfer deed, a Certificate of Non-Foreign Status for purposes of tax withholding, and a closing statement, which describes all costs associated with the sale. Although an attorney is not required in Florida for the preparation of these documents, many real estate attorneys would argue that hiring an attorney, whether for the buyer or seller, will increase the client's protection during the process.
The foundation document for any real estate sale is the purchase and sale contract. This contract describes all aspects of the transaction, including the price; any easements, covenants or restrictions involved with the sale; acknowledged defects in the property and the seller's potential liability for same; and the important dates for each phase of the sale. Real estate professionals, such as brokers, generally have the ability and experience to draft a real estate contract. However, unless the real estate professional is also an attorney licensed to practice in Florida, she will not be empowered to offer legal advice to either the buyer or the seller regarding the contract. Only licensed attorneys can offer legal advice.
Title Insurance Company
In addition to real estate brokers or agents, the title insurance company is also heavily involved in a real estate purchase. The title insurance company's role is to research the background of past ownership of a piece of property and certify that the seller actually has the legal right to transfer the property. However, the title insurance company is an independent entity in the sale of real estate. It does not represent either the buyer's or the seller's interest. The company's role also does not include legal advice on the ramifications of potential issues that may develop with the title search. In fact, a Florida title company may not include attorneys on its staff at all. Therefore, the title insurance company is no substitute for a legal professional.
Dealing With Lenders
If a real estate purchase includes a mortgage, dealing with the lender and mortgage contract may add yet another level of complexity to the buyer's end of the real estate purchase. Even if a mortgage lender suggests that the buyer use their attorney for the lending process, the Real Estate Settlement Procedures Act, a federal law, gives the Florida borrower a right to hire his own attorney to help deal with the mortgage.
Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.