About This Post
After writing this post, I came back and added this section. I did not like the overall tone of the post because I felt that it was a little negative in areas. However, I decided not to change the wording because to do so would be to give an inaccurate account of the situation. Also, please understand that the goal of this post is not have you use an attorney as part of your representation in the home buying process. The goal of this post is to give you the big picture of the reality of the process so that you can decide for yourself in choosing the route that is best for you.
Absence of Legal Representation
Buyers who have previously owned property in other states look at you as if you are completely crazy when you tell them that the use of an attorney is not necessary when going through the residential purchase procedure. Many other states mandate an attorney signing off on the transaction before it can become official. Depending on the state, the attorney’s duties can be anything from acting as an escrow holder, to providing advice on the transaction. California does not require such involvement from an attorney. Instead, the traditional role of the attorney is cut up into a few different pieces and split among the real estate agent, the brokerage of record and the escrow/title office….none of which are qualified or allowed to give you legal advice. Does this sound slightly concerning? It should. Especially, when the average home price in San Carlos approaches one million dollars.
For your protection in residential purchase transactions, California relies primarily on form contracts and enough disclosure paperwork to fill up warehouse after warehouse with files that will never see the light of day. The truth of the matter is that unless you have legal representation in the purchase, you are never fully protected. I used to wonder why California attorneys did not make a bigger push to institute statutes requiring the use of an attorney in the home buying process. Then it occurred to me that attorneys make much more money on their involvement after these deals go sideways. Just how big of an industry is this? In 2004, one out of every four home purchases ended with some type of basic litigation, meaning everything from threatening letters to actual litigation. They are cash cows to many attorneys across the state.
San Carlos relies heavily on our local PRDS Purchase Contract. This eight page document sets out the contractual terms of the offer as well as the defenses available to the buyer and seller. This form contract has evolved over the years and has made some serious improvements. However, at the end of the day, it is still a contract that can be filled in on the hood of your realtor’s car in about five minutes. As you may well imagine, some attorneys have a field day with this contract whenever something does go wrong.
Many attorneys will also tell you that it is just not the contract itself which leaves a lot to be desired, but the circumstances around the signing of the offer. How many of you out there have signed a contract under a multiple offer situation? How about waiving all of your contingencies? Had second thoughts after the offer was accepted? There are numerous circumstances that show themselves in San Carlos that can affect the enforceability of a contract.
The Reality of the Situation
The reality of buying a home in San Carlos is that if you elect not to have your contract reviewed by an attorney, odds are that you will be just fine. The majority of home purchases go through without any issue whatsoever. Padding your rights and liability with the use of an attorney is directly related to the unique purchase situation itself and your tolerance for risk.
Here are a few helpful hints:
(1) Many contracts can use some legal “tightening” through a counter offer. If you choose to involve an attorney to review your contract, ask for a few clauses to be inserted into the counter offer which will give you added protection.
(2) If you find yourself in the middle of a purchase and the inspections and disclosures from the seller are not adding up, it may be time to obtain legal advice.
(3) If you are not receiving thorough and complete answers to your questions regarding the process, it may be time to get a legal explanation.
We are fortunate in San Carlos to have many experienced realtors who, at the very least, know when it is time to recommend that you obtain an attorney if something does go sideways.