PURCHASING REAL ESTATE

Purchasing real estate can be intimidating if you are not familiar with the process.

Here in West Virginia we pride ourselves on keeping our word and the validity of the handshake, but established real estate law through the Statute of Frauds, which has come down to us through the centuries from England, requires that a writing signed by the seller is necessary for any agreement respecting real estate to be enforceable. To establish the terms of a real estate transaction the parties should enter into and sign a written contract. If there is a realtor involved, the realtor will present a contract form for the parties to sign. Consider it carefully. Is the real estate agent working for you or the other party? If there is not a real estate agent involved, have an attorney prepare a contract for you to establish the terms and bind the parties.

A real estate contract should set forth at least the following terms:

• Price
• Down payment:
  Some contract forms provide that on default by the purchaser the down payment is forfeited to the seller as liquidated damages with no further liability to the seller, but other forms apply it to the realtor’s commission and leave the buyer open to suit for damages to the seller.  Read it carefully!
• Date for closing
  If the contract uses the term “Time is of the essence”, there is no grace period and time deadlines will be strictly enforced with no variation.
• Contingencies
  Typically the contract should provide for contingencies for:
  – Title examination by an attorney for liens or title defects.
  – Loan approval by a bank.
  – Survey.
• Inspections:
  – Pest
  – Engineering or home inspector for construction defects.
  You are required to use due diligence to find any problems with the structure before you buy
• Expenses
  Typically the seller pays for preparation of the deed, the excise tax on the sale of real estate imposed by the state ($6.60 per thousand dollars of purchase price), pest inspections, the realtor’s commission, and maybe the survey, while the buyer pays for the title examination, deed recording, any bank or loan fees, survey, deed and lien recording for the bank or other lender and any other inspections. These are all negotiable.
• Personal property
  Will the sale include appliances. drapes or other property not part of the real etate?

You should never purchase real estate without a title examination by an attorney! A title exam should reveal whether the property includes mineral rights, whether there are easements for utilities or adjoining property owners for access, whether there are liens such as deeds of trust to banks or lenders, judgments or tax liens against the current or prior owners, and whether the real estate taxes have been paid for current and prior years.

You should also know that there are three different kinds of deeds. A General Warranty deed warrants that the seller is the owner and has good title to the property. But a Special Warranty deed (sounds better doesn’t it?), usually used by trustees and corporations, warrants only that the seller or grantor has done nothing to mess up the title himself; he warrants nothing beyond himself! The third is a Quitclaim deed which says only…”Whatever I have I grant to you, but I might have nothing and might have given someone else a deed yesterday; I promise you nothing!” To my surprise, the general practice in some other states, such as Florida, seems to prefer the exclusive use of Quitclaim deeds. If you did not get a title certified by a lawyer or title insurance company you have no recourse if there is a problem.

Title insurance is an insurance policy insuring the title to real estate. Upon payment of a premium, the company or its agent issues a policy so that even if the lawyer is deceased, or has made an error, the title company stands good for the title, and matters of survey, if included in the policy. I am, and have been for years, an agent for First American Title Insurance Company, an outstanding company which is the largest underwriter in West Virginia, and I can write the policy for you based on my examination of the title, but then backed by First American.

Please understand that this blog is a short overview of the law in this area and is not a substitute for a conference with a competent real estate attorney who can advise you based on the specific facts of your situation. Of course, I stand ready, willing and able to help, but always prefer to meet my clients face to face with all the facts and documents on the table to insure the best and most accurate advice possible.