“The buyer assumes responsibility for any property damages, defects, undisclosed restrictions, and the like.”
“Furthermore, the seller is not obliged to disclose details about the general condition of the property.”
Do I need a real estate attorney in the Berkshires?
Massachusetts is a buyer beware or “caveat emptor” state. The buyer assumes responsibility for any property damages, defects, undisclosed restrictions, and the like. Furthermore, the seller is not obliged to disclose details about the general condition of the property. While the seller cannot mislead you, and must respond honestly to any question that you are aware he or she does not have to disclose information if you do not ask. On the other hand, the real estate broker does have an obligation to disclose defects known to the agent.
Legal tasks to protect your interests cannot be performed by your real estate agent or a title company in the Berkshires. Massachusetts General Laws Chapter 221, Section 46A, prohibits the unauthorized practice of law by nonlawyers.
Therefore, while real estate agents and title companies can do most of the legwork in many other states, this is not the case in the Berkshires. A real estate agent in the Berkshires cannot create a contract except by filling in blanks on the Standard Berkshire County Multiple Listing Service Purchase and Sale Agreement. Title companies cannot provide title reviews or advise how to remedy problems. Only a Massachusetts licensed attorney can do these things.
You will want to know if there are restrictions on the use of the property, easements, encroachments, liens, or risks to having undisputed ownership. Your real estate attorney will do that. Your attorney will also monitor contingency dates in the contract to ensure that you don’t unwittingly lose your deposit, and will negotiate credits or repairs to the property, and work with your lender to ensure that you get your mortgage in time for closing.
A routine closing can become non-routine very quickly. You want to work with an attorney who is involved in every step to make sure that legal decisions are properly made.
What does a buyer’s attorney do in the Berkshires?
Simply put, the primary goal of your real estate attorney is to serve as your advocate, make sure that everything goes smoothly from offer to closing, and to make sure that you can use the property in the way that you intend. Your Berkshire real estate attorney will provide many services that are not routinely provided by attorneys in New York or other states because real estate agents and title companies cannot provide legal services in Massachusetts.
The primary tasks of a real estate attorney in the buying process is as follows:
- Advise you about legal implications of the Purchase and Sale Agreement, and advocate for you when negotiating the deal and conditions of sale.
- Negotiate legal terms relating to credits or repairs to the property if defects to the property become apparent during the inspection period.
- Review certificates needed and, if retained to do so, resolve issues required for occupancy, such as those related to Title V (septic), wells, radon, mold, asbestos, smoke detectors and lead paint.
- Work with your lender for any mortgage. Your attorney may also represent the lender.
- Ensure that there aren’t restrictions attached to your property’s deed that will prevent you from using the property in the way you intend
- Ensure that you will receive clear title to the property you want to purchase without pre-existing liens or judgments.
- Determine that the necessary documents are properly recorded with the Registry of Deeds and disburse all monies.
- Inform you of issues that may concern you. For example, an experienced attorney will let you know if your property is subject to an easement that allows others to pass through your property.
- Provide advice as to ways you might be able to withdraw from the contract without losing your deposit.
A routine closing can become non-routine very quickly. It can happen suddenly and after much of the work was completed. When it becomes non-routine, you will want an attorney who will make decisions and recommendations that involve legal judgment and experience. Some law firms rely heavily on paralegals to do most of the work to prepare for a closing. This is risky because a paralegal might not recognize a non-routine closing issue before it is too late. In that case, the entire transaction could be at risk.
You want to work with an attorney who is involved in every step to make sure that legal decisions are properly made and that problems are resolved before the closing. Otherwise, you might not learn until the closing itself that you will not be able to take possession of your property or use it in the way you expected.
The other reason is that an experienced real estate attorney may be able to find additional opportunities or options that might benefit you later. Without the benefit of an attorney, you might never know that you had an option that could have protected you or saved many times the cost of hiring the attorney.
In Massachusetts, deed restrictions do not need to be separately disclosed by the seller. You need your attorney to research them. Some properties contain easement rights that could limit how you can enjoy your land. These are restrictions that you need to know about before you commit to buying the property.
If you have a particular use in mind for the property, you should specifically engage an attorney to review that particular use and advise you as to its feasibility. This is not part of the standard work of a real estate attorney, so you need to explicitly include it in the engagement of your attorney. Do not assume that just because a previous owner or neighbor used the property in a certain way that you will be allowed to do so. For example, you should disclose if you plan to build a house extension or rent a property as an Airbnb.
A real estate attorney can help you to be sure that you can use the property the way you intend.
“There are many legal problems that could prevent you from using the property in the way that you intend.”
What types of legal problems might a real estate attorney find?
There are many legal problems that could prevent you from using the property in the way that you intend. Your real estate attorney in the Berkshires can uncover many potential legal issues and resolve them before they become legal problems.
Here is a list of some potential legal problems that can handled by a real estate attorney in the Berkshires:
- Your Purchase and Sale Agreement does not properly identify the property you think you are buying. The street address may be what you think, but the deed reference may be wrong. Or the square footage on the deed does not match what you are expecting to buy.
- Your property boundary lines may not be where you think they are. Some Massachusetts deeds are ancient. It is not uncommon for a title to refer to markers that no longer exist. For example, a deed to the property could state that the property goes “up to the big oak tree.” That oak tree could be long gone. Research may need to be performed to determine the true boundaries of these properties.
- You may have easements or restrictions that will impact the value of or your ability to enjoy your property. They can also affect your ability to use your own land. For example, a neighboring property may have the right to cross your land or build a driveway on it to access a street. There may also be rights for the public to walk across or bring a boat across your land to access a body of water. Drainage easements may allow a nearby property to alter the landscape to provide for water runoff.
- Your land may be part of an incorporated or unincorporated homeowner’s association that will levy assessments or fines. These associations often have rules that restrict how your property may be used. For example, you may be obligated to pay a share of snow plowing for an entire street or you may not be able to rent the property for less than 30 days. Or you may not be allowed to build a fence or a pool without getting approval from the association.
- Your land may be zoned differently than you expect, and you may not be able to use the land the way you want. This is particularly problematic when you intend to build a new structure on the property. It is possible that your property may span more than one zoning district. Do not assume that just because a previous owner or neighbor used the property in a certain way that you will be allowed to do so. Note that you would have to specifically engage your attorney to advise you as to the possible uses of the property and the implications of zoning. This type of advice is not part of standard real estate closing representation.
- Your land may be subject to a municipal lien or a utility lien, a taking or a betterment assessment.
“The best real estate attorney for you is the one that you can work with and matches your style.”
How do I find the best real estate attorney for me in the Berkshires?
The best real estate attorney for you is the one that you can work with and matches your style. There are attorneys who are more cautious, attorneys who are adversarial and attorneys who work cooperatively with all parties to close the deal. Find the one that matches your style.
The way to do that is to follow these steps:
- Get a recommendation from a friend. If you can’t do that, check Google reviews.
- Call the attorney on the phone or send them an email.
- Make sure you are comfortable talking with that attorney. You need to feel good about discussing personal issues like finances and what you plan to do with your property.
- Get a sense of how cautious or detailed the attorney will be. Does that match your style?
- Find somebody who is interested enough to ask you specific questions about the property.
- Find somebody who will answer your initial questions and give you an in depth understanding of the process.
- Get a sense of whether the attorney has the experience to handle a problem if one arises.
“There are many rules and customs that are specific to the Berkshires, and an attorney from Boston, or any other region, will not likely be able to provide adequate representation.”
Can I use my New York attorney to buy real estate in Massachusetts?
No. Attorneys from other states who are not licensed to practice in Massachusetts are considered nonlawyers in Massachusetts. Since Massachusetts General Laws Chapter 221, Section 46A, prohibits the unauthorized practice of law by nonlawyers, you cannot get legal advice from your New York attorney. It is unlawful for an attorney from any other state to draft a contract or negotiate as your attorney in Massachusetts.
You may say that you have a friend or relative who is a lawyer who can give advice. Even for non-contract matters, it is generally a bad idea to obtain advice from attorneys who are not intimately familiar with real estate in the Berkshires. The rules are complex, and many are arcane. There are many rules and customs that are specific to the Berkshires, and an attorney from Boston, or any other region, will not likely be able to provide adequate representation.
Massachusetts real estate law involves precedents that date from before the U.S. Constitution was written. (The Constitution of the Commonwealth of Massachusetts, drafted by John Adams and written in 1780, is the world’s oldest functioning written constitution. It served as a model for the United States Constitution, which was written in 1787 and became effective in 1789.) Some boundary lines and land use rights in some parts of the state may date to the 1600s. Some state laws, such as the Scenic Mountains Act, are specific to the Berkshires and apply differently to different towns in the County. Each of the 32 towns and cities in the Berkshires has specific zoning and environmental regulations. In addition, certain customs are recognized among attorneys in Berkshire County that are not routinely practiced by attorneys from other regions. You want an attorney who is not only licensed in Massachusetts, but also familiar with the region.
Friends and lawyers who are not specifically familiar with the practice of real estate in Massachusetts, and the Berkshires in particular, may not provide useful advice.
“The best real estate attorney for you will not only answer your questions but will also ask you specific questions about your property and what you intend to do with it.”
What specific questions should I ask before hiring a real estate attorney?
When you first speak to a real estate attorney there are some specific questions you can ask to get a sense of how that person will work with you.
- How much of their work involves real estate law?
- How easy is it to speak directly with the attorney who will be handling your purchase? What hours is the attorney available? How long is the typical wait?
- Who handles the detailed legwork? How much is done by the attorney you are talking to and how much is done by a paralegal?
- If you are purchasing land and intend to build on it, how much of the attorney’s business relates to land sales and land use?
- How much does the attorney know about the particular town or city where you will be buying? Do they really know the intricacies? For example, do they personally know the building inspectors or members of the zoning board?
- Can the attorney recommend a good lender with whom they’ve worked before?
- How are closings conducted?
- How does the attorney charge? Is it by the hour or flat fee? What is included and what is extra?
The best real estate attorney for you will not only answer your questions but will also ask you specific questions about your property and what you intend to do with it. Make sure that you feel at ease with the attorney and have a good rapport. If you have any concerns, address them or go to another attorney. You do not want to find a problem after it is too late.
The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice.