Some States Require a Real Estate Attorney at Closing — Does Yours?

A real estate attorney’s complex role at closing

In many ways, real estate attorneys serve as fact-checkers. Agents can often defer to an attorney’s better judgment concerning everything from initial contracts to the breakdown of final closing costs.

“Most of them do more than just push the paper and say, ‘Sign here. Sign there,’” says Teresa Cowart, a top real estate agent with 19 years of experience selling homes in Georgia, a state that requires an attorney at closing.

Draft and review closing documents

According to Cowart, the attorney’s primary job is to review, and sometimes draft, the title and contracts and to facilitate the closing process; in states where an attorney’s participation is not mandated, title companies typically conduct these steps.

Transfer property title

Before transferring the property title, attorneys evaluate public records on a property’s history, to uncover any potential liens or other issues that might negatively impact the title for the new owner.

Resolve legal barriers

Unexpected closing roadblocks, such as a lien on the title or a disclosure issue, happen to 13% of contracts, according to the National Association of Realtors, and in 5% of home sales, the buyers or sellers terminated the contract altogether. Fortunately, attorneys can identify and address these complications during the closing procedure.

Mediate contract disputes

Attorneys can also act as mediators between buyers and sellers in a contract dispute. The attorney can look back at the sale documents and provide both parties with an unbiased legal perspective.

“I call the attorneys that we work with on a regular basis when I have a buyer or seller in dispute over something, and I need some clarification on the actual contract,” says Cowart. “Sometimes they’re the voice of reason.”

Support your agent with the legal aspects of closing

While both agents and attorneys understand the real estate industry well, they possess a different set of credentials. Should you encounter any hiccups in your home sale, agents are not licensed to provide legal advice; in fact, doing so would mean breaking the law. In these circumstances, an agent can rely on the attorney’s expertise to help fill in the gaps.

Provide peace of mind to all parties

Thanks to their experience and education, real estate attorneys can provide some peace of mind for all parties involved. They help protect clients from legal disputes and streamline the closing process for a smooth sale.

“I think it does give the consumer a feeling of security to know that an attorney has looked over everything,” Cowart adds. “The more eyes on it, the better.”

What your state laws say about real estate attorneys

State laws dictate whether or not an attorney is required at closing, as well as how involved the attorney must be in the process. For instance, some states, like Louisiana, require a real estate attorney to examine and certify the title. But in Georgia, court decisions from 1989 and 2000 determined that a licensed attorney must conduct real estate closings and “be in control of the closing process from beginning to end.”

Some states have different customs and laws depending on the county. In New Jersey, an attorney’s involvement in the northern region of the state differs from real estate routines farther south.

In states where an attorney is not required at closing, other professionals — an escrow title company, settlement agent, or real estate agent — will handle closing responsibilities like title transfer and drafting closing documents.

Even if your state doesn’t mandate an attorney’s involvement, hiring an attorney for closing may be customary. This is the case for Hawaii, where the island’s history of land division and recording procedures has shaped the property descriptions, disclosures, and even the terminology used in real estate today.

Before you search for legal representation, review the list below for your state’s regulations regarding attorneys at closing and consult a top real estate agent in your area who can educate you on the norms for your region. Remember that state laws can change from year to year. This list is for informational purposes only and should not be relied on for legal advice.

1. Alabama: Non-attorneys can oversee closing transactions but a licensed real estate attorney is recommended.
2. Alaska: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
3. Arizona: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
4. Arkansas: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
5. California: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
6. Colorado: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
7. Connecticut: Connecticut Senate Bill 320 (Public Act No. 19-88) requires a licensed attorney to conduct real estate closings.
8. Delaware: A Delaware Supreme Court decision in 2000 requires a licensed attorney to conduct real estate closings.
9. District of Columbia: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
10. Florida: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
11. Georgia: Georgia Supreme Court decisions from 1989, Formal Advisory Opinion No. 86-5, and 2000, Formal Advisory Opinion 00-3, require a licensed attorney to conduct real estate closings and “be in control of the closing process from beginning to end.”
12. Hawaii: Real estate attorneys are not essential for closing but are often hired by escrow agents and title companies to prepare closing documents due to Hawaii’s history of land division and recording procedures and its implications on modern real estate practices.
13. Idaho: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
14. Illinois: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
15. Indiana: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
16. Iowa: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
17. Kansas: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
18. Kentucky: The Kentucky Bar Association Opinion KBA U-58 requires a licensed attorney to conduct real estate closings.
19. Louisiana: The Louisiana Law R.S. 22:512(17) requires that a licensed attorney examine and certify the title.
20. Maine: Real estate closings are conducted by either a licensed attorney or a title company; however, according to Maine Law Title 9-A, §3-311, the consumer may select the attorney of their choosing.
21. Maryland: Real estate attorneys are not essential for preparing typical closing documents; however, according to Maryland Real Property §3-104(f)(1), an attorney must certify that any deed, mortgage, or deed of trust has been prepared (1) by an attorney, (2) under an attorney’s supervision, or (3) by one of the parties named in the instrument.
22. Massachusetts: The 2011 Massachusetts Supreme Judicial Court decision, No. SJC 10744 requires a licensed real estate attorney to conduct real estate closings and analyze closing documents.
23. Michigan: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
24. Minnesota: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
25. Mississippi: Mississippi requires a licensed attorney to examine and certify the title (refer to MS Code § 81-12-165 (2013); MS Code § 29-3-5 (2016)).
26. Missouri: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
27. Montana: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
28. Nebraska: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
29. Nevada: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
30. New Hampshire: New Hampshire requires a licensed attorney to conduct real estate closings.
31. New Jersey: Real estate attorneys are not essential for closing; however, it is customary for attorneys to conduct closings in the northern portion of the state, while title companies handle the matter in the southern region.
32. New Mexico: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
33. New York: New York requires a licensed attorney to conduct real estate closings.
34. North Carolina: North Carolina requires a licensed attorney to oversee real estate closings.
35. North Dakota: The North Dakota Century Code Section 26.1-20-05 requires a licensed attorney to examine and certify the title.
36. Ohio: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
37. Oklahoma: Oklahoma requires a real estate attorney to conduct your title examination, but that is only one small aspect of the transaction and will be included as part of your closing services. They are welcome but not required for all other aspects of the transaction.
38. Oregon: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
39. Pennsylvania: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
40. Rhode Island: A Rhode Island Supreme Court decision in 2020 requires a licensed attorney to examine and certify the title, as well as draft or review the deed.
41. South Carolina: A South Carolina Supreme Court decision in 1986 requires a licensed attorney to conduct real estate closings in person.
42. South Dakota: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
43. Tennessee: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
44. Texas: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
45. Utah: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
46. Vermont: According to the Vermont Bar Association, a licensed real estate attorney should examine the title and conduct closing.
47. Virginia: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
48. Washington: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
49. West Virginia: The West Virginia State Bar Committee Opinion No. 2003-01 requires that a licensed real estate attorney examine and certify the title and conduct closing.
50. Wisconsin: Real estate attorneys are not essential for closing but may be advised by your real estate agent.
51. Wyoming: According to Wyo. Stat. §26-23-308 and §33-2-101, real estate attorneys must offer a title opinion to issue title insurance and should also prepare closing documents such as deeds.

The average cost of a real estate attorney

According to Avvo, an online marketplace for legal services, attorneys typically charge $150 to $350 per hour for residential real estate transactions. However, some attorneys charge a flat fee for their assistance in real estate transactions, and these costs can range from $1,200 to $3,000. The buyer usually foots the bill for this expense, but they may negotiate for the seller to pay the fees in some instances.

Regardless of who pays, Cowart clarifies that the attorney often doesn’t represent the seller or the buyer. “Actually, the attorney represents the lender.” The attorney’s job, Cowart explains, is to protect the interests of whoever holds the cash, which is often a mortgage lender. However, this is not always the case. Cowart encourages sellers and buyers to hire an attorney to represent them in certain circumstances, such as if a seller is preparing to sell their own home or a buyer would like to pursue a cash deal.

Reasons to consider hiring a real estate attorney for your home sale

Regardless of your state laws, there are many circumstances that may warrant a real estate attorney’s assistance.

“I hate to see people get into the situations where they’re potentially putting themselves at risk,” says Cowart, who advises sellers to hire an attorney if their home sale involves one of the following:

• The home’s original owner is deceased.
• The seller is going through a divorce.
• The buyer is moving from out of state, or the homeowner is selling from out of state.
• There are financial complications, such as a lien or judgment on the title.
• The property is owned by the bank.
• The home is a for-sale-by-owner (FSBO).
• There are tenants involved.
• The property is damaged.
• There is a buyer-seller dispute (or potential for a dispute).

Consult a top real estate agent before hiring an attorney

Buying or selling a home is a complicated process. Add to this the reality that laws differ from state to state, and you’ll want to make sure you’ve done your homework before signing any closing documents.

To find an experienced real estate attorney, take advantage of search engines like Avvo and FindLaw. You can also use your state’s bar association website to find licensed attorneys organized by ZIP code, specialty, and more.

Before you begin searching for legal representation, speak with a real estate agent in your market. In addition to referrals, they can provide you with insight on your state’s laws and advise you on whether or not an attorney would be beneficial for your unique home and circumstances.

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