Editor’s Note: Over the next eight weeks The Edge will be serializing an as yet unpublished book by Great Barrington attorney David M. Lazan. This first installment contains the Introduction and Chapter One: Real Estate Agents and Lawyers. Future installments will cover The Purchase and Sale Agreement; The Title,Title Insurance, Plot Plans and Surveys; Financing Real Estate; The Closing; Condominiums; Buying Land and Building a Home; The Massachusetts Homestead Act; Nominee Trusts; and Short Sales.
INTRODUCTION by author David M. Lazan
I am a Massachusetts real estate lawyer practicing primarily in Berkshire County, which is located on the western edge of the Commonwealth. The county has a total area of 946 square miles and a population of about 130,000. Its principal city is Pittsfield, which is also the county seat. Berkshire County and some of the surrounding areas in New York, Connecticut and Vermont, are frequently referred to simply as the “Berkshires”.
In addition to local residents, I also represent a relatively large number of second home owners and transplants from other states. A good number of those clients come from New York, New Jersey, Florida, and Connecticut. Too often my clients, including lawyers from other states, tell me, “that is not how we do things where I come from”. They say that Berkshire County’s transactional methods seem provincial, uncomfortable, or confusing. Even those who have participated in property transactions in Eastern Massachusetts often seem miffed at the differences they encounter when dealing with real estate in Berkshire County. My primary reason for writing this book is to dispel the confusion and provide some guidance to those unfamiliar with the process in Berkshire County for buying and selling real property.
It is here that you will find the basic information you need to understand how real estate is dealt with in this somewhat rural corner of the Commonwealth. You will also obtain a clear understanding, based on my experience practicing real estate law for more than forty years, of which professionals you should consider hiring and, in some instances, how to go about selecting those professionals. I point out many of the risks that you need to consider when dealing with real estate in Berkshire County, so that you may make an informed determination as to whether to accept those risks, attempt to minimize them, or forego them entirely.
Although I cover many subjects, it is important to understand that this book is not a substitute for the competent counseling by lawyers, realtors, architects, surveyors, and other professionals whose advice may be necessary to conclude a real estate transaction in a satisfactory manner. However, I hope to help you avoid the pitfalls, stress, and disappointment that can result from the failure to make certain well-informed decisions, by highlighting areas that I believe should be of concern and by providing information you may need to assist you in making those decisions
CHAPTER ONE: Real Estate Agents and Lawyers
In Berkshire County, few real estate transactions occur without the involvement of a real estate agent. The real estate agent’s role is two-fold. First, it is the realtor who knows or has access to information about the multitude of different homes that are for sale, their unique features, as well as the benefits and disadvantages of their location. Second, the real estate agent is the person who can arrange to show prospective buyers the properties that they may want to purchase. There are also many other services which realtors perform, some of which services I shall discuss shortly.
It is not only the real estate agent who plays an integral part in real estate transactions in Berkshire County. In many other states, title insurance agencies, notaries, and escrow companies customarily conduct real estate settlements or closings. This means that parties to a real estate transaction in those states sometimes do not have the benefit of legal advice in what may be the most significant transaction of their lives. In contrast, closings in Massachusetts are conducted by real estate attorneys who, by law, are required to participate substantively in all real estate transactions. This includes the drafting of deeds, reviewing title, ensuring funds are collected and disbursed correctly, making sure that deeds and mortgages are properly recorded, and assuring that prior liens are discharged. This distinction between the conduct of real estate closings in Massachusetts and that in other states translates into greater protection for clients.
1. Real Estate Agents
The value of a Berkshire County real estate agent to a Buyer and Seller is significant, but not all aspects of the realtor’s contribution to the process of buying and selling property are readily apparent. It is the local realtor who has intimate knowledge of different towns, their neighborhoods and school systems. Realtors know where hospitals, dentists and doctors are located; the distance to a food store, dry cleaner, or the post office; and how long it will take to get to Tanglewood, Jacob’s Pillow or the Outlet Mall.
Since almost every property for sale in Berkshire County is listed with the Berkshire Multiple Listing Service, also known as the MLS system, almost every realtor is able to show every listed home to a prospective buyer. The MLS is a complex information-sharing and cooperative marketing network created by realtors to help the public buy and sell homes. After information pertaining to a seller’s property has been entered in the MLS database, realtors can then access that information, encouraging a high degree of cooperation among realtors.
Once a prospective buyer finds a property in which the buyer is interested, whether through advertisements, printouts of MLS listings, or a “for sale” sign on a home, the buyer typically contacts a real estate agent.
In choosing a realtor, always try to choose a person who understands your interests and with whom you are comfortable working. Spending hours and sometimes days with someone who does not understand your needs or whom you find, for one reason or another, to be disagreeable, can make the buying or selling process unpleasant. Once you have chosen an agent with whom you are comfortable, it is best to stay with that agent. Going from one realtor to another often reduces an agent’s desire to put forth the effort required to find you the right property or properly market your property.
A realtor who lists a property for sale is referred to as the “listing agent.” When a home is listed for sale, the owner or owners enter into a contract which is called a listing agreement. In the listing agreement, the seller agrees to pay the realtor’s agency an agreed-upon commission upon the sale of the home. If an agent representing a buyer is involved in the sale, the listing agent will share the commission with the buyer’s agent.
If a buyer is working with an agent who is not the listing agent, the buyer’s agent will arrange with the appropriate listing broker to show those homes to the prospective buyer. A buyer should note that since agents in the Berkshires generally do not use “lock boxes” (where keys are left to enter a home), especially in the southern portion of Berkshire County, it is important to provide an agent with enough time to schedule appointments sufficiently spaced to avoid having to rush from home to home.
Berkshire realtors are invaluable resources for sellers as well as buyers. Because of their knowledge of the local market, they can assist in pricing a property in order to enable a seller to sell within a reasonable period of time. They know what prices comparable properties in the area have sold for, possess the skills and resources necessary to market the property and are able to recognize features or improvements that a buyer would find attractive.
If it is obvious to a seller’s real estate agent that certain repairs or improvements are necessary to achieve a better price, the agent will not only suggest that such repairs or improvements be performed; they can actually suggest crafts people with whom the agent works regularly and who can accomplish those repairs or improvements quickly and reasonably. Recently, more and more realtors are suggesting that a property be “staged” by re-arranging its furnishings to create a better impression on a prospective buyer. Sometimes, staging may require re-painting a room to a neutral color; adding, re-arranging or removing furniture; clearing off table tops and removing collections of family pictures. The purpose of staging is to enable buyers to envision the home as their own. In addition, more attention is being paid by realtors to the quality of the photographs they create and place in their advertisements, brochures, and in the MLS. Employing professional photographers has become more common among Berkshire realtors, especially those who handle high-end properties.
Unlike the practice in many states, both the buyer’s agent and the listing agent are typically present when showing a home to a prospective buyer. Rarely is the seller present. When a prospective purchaser decides to buy a property, the purchaser’s real estate agent will prepare a purchase and sale agreement, which is the contract that obligates a purchaser to purchase and a seller to sell a property and that I discuss in Chapter Two. Besides many other provisions, the purchase and sale agreement sets forth the purchase price, closing date, the amount of the deposit, the length of any contingencies, and what is and is not included as part of the property being sold, such as fixtures, appliances or furniture. At this point and before signing the purchase and sale agreement, the prospective buyer and seller should each have lawyers review the proposed agreement and assist in negotiating any changes that they feel are necessary or appropriate. This is important, because once the purchase and sale agreement is signed by both parties, it is a binding contract and cannot easily be changed.
If the parties are able to reach an agreement and the purchase and sale agreement is finalized, the parties will sign the agreement, which will include any revisions and addendums that have been negotiated. After the purchase and sale agreement has been signed, the real estate agents will assist the parties in many vital ways, such as arranging for home inspections, financing, potable water tests and septic system inspections. Again, the real estate agent can be a key source of important information and may be able to recommend professionals such as movers, builders, architects and lawyers or provide other helpful information.
Because Berkshire towns and villages are so small and intimate, the relationship between a real estate agent and client, more often than not, results in a friendship extending long after a transaction closes.
2. Real Estate Lawyers
In Massachusetts, as with the selection of a realtor, the selection of a real estate lawyer is obviously an important decision. Here, an attorney’s role is not simply ministerial. Instead, it is the attorney who must guide the parties through the sometimes-complicated and unique laws concerning the purchase and sale of real estate, as well as issues relating to title to the property. If desired by the client, a knowledgeable and experienced attorney can also guide a client through the labyrinth of regulations and laws governing property rights, zoning laws, building codes and laws protecting our environment.
It is important to select a real estate lawyer early in the process of buying, selling, building, or financing a home so that you can make sure you are comfortable with that attorney. Leave yourself enough time to investigate his or her background and, if possible, speak to the attorney’s former clients. Because of the important role a lawyer plays in a real estate transaction, one should choose a lawyer in the same manner as choosing a physician; not in the manner that one would shop for a vacuum cleaner.
One useful reference source for selecting an attorney is Martindale–Hubbell, a traditional publication that is now available online. Martindale-Hubbell provides information for prospective clients about lawyers and law firms. It can be an excellent starting point for learning about lawyers in a community, as well as their background and level of expertise. It is free and easy to access on the Internet at www.martindale.com. Another useful tool is the website www.lawyers.com, which also has a sophisticated search function. In any event, I again strongly recommend that you consult with an attorney before signing a Purchase and Sales Agreement or other binding document to avoid some of the pitfalls and mistakes that can occur.
Copyright © 2014 by David M. Lazan All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from the publisher.
Next week: Chapter 2. The Purchase and Sale Agreement