Practice Areas : Real Estate
Purchase of Residence
The purchase of a residence is, quite often, the largest real estate transaction a person will enter into during his or her life time. It is, therefore, important to proceed with caution.
After locating a property which is of interest to you, a written contract for purchase and sale must be negotiated and entered into. Verbal agreements for transfer of real estate are generally not enforceable in the State of Florida. If you have engaged the services of Realtor, make sure the Realtor is involved in all contract discussions. The Realtor can offer practical guidance, especially in negotiating the contract price. It is a relatively common practice for a seller to offer property at a price which is higher than the seller’s expected price. A "fair" price for the property is generally arrived at after some give and take on the part of both seller and purchaser. The Realtor will examine comparable sales in the area which will support the fairness of your purchase price. Once a price has been agreed upon, as a buyer, it is extremely important to carefully examine the property to look for repair items for the seller to handle prior to your closing. Your contract should provide for you to obtain an inspection of the property by a licensed contractor. The contractor can root out potential problems and existing problems with the structure that you would overlook. It is important to have an open discussion with your seller about all of your concerns relating to the property and all aspects of your agreement with the seller should be made a part of your written contract. If you will be borrowing funds to pay all or a portion of your purchase price, the contract should be made contingent upon your ability to obtain a commitment for a loan within a reasonable time after signing the contract. There are many other issues which need to be addressed in the contract, most of which are covered in the form presently approved for use by both the Florida Bar Association and the Florida Board of Realtors, such as which party will pay for certain closing costs, what will happen if termite infestation is discovered, what are your rights if title is defective, and what if the survey reveals an encroachment.
It is important that you not sign any contract without having it first reviewed by an attorney who will represent your interests. Most disputes and lawsuits relating to residential real estate transactions are the direct result of unclear, incomplete or inaccurate contract language. A lawyer can also assist with questions that arise before closing and ensure that the closing goes smoothly and that your contract rights are protected.
There are many aspects of purchasing real estate and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.
Sale of Residence
The sale of a residence is, quite often, the largest real estate transaction a person will enter into during his or her life time. It is, therefore, important to proceed with caution.
Once you have located an interested purchaser, a written contract for purchase and sale must be negotiated and entered into. Verbal agreements for transfer of real estate are not enforceable in the State of Florida. If you have engaged the services of Realtor, make sure the Realtor is involved in all contract discussions. The Realtor can offer practical guidance, especially in negotiating the contract price. The Realtor will have examined comparable sales in the area which will also support the fairness of your sales price. It is also best to get your attorney involved in the transaction at this stage, well before the contract is signed. Once a price has been agreed upon, as a seller, it is important to carefully weigh any requested contingencies.
You can expect that your buyer will request a financing contingency to allow them time to obtain a loan commitment from and institutional lender. The buyer may want to have the property inspected by a contractor. There are many other issues which need to be addressed in the contract, most of which are covered in the form presently approved for use by both the Florida Bar Association and the Florida Board of Realtors, such as which party will pay for certain closing costs, what will happen if termite infestation is discovered, what are your duties if title is defective, and what if the survey reveals an encroachment.
At all times in dealing with potential buyers, especially in the context of negotiating a contract, you need to be aware of how Florida law will impact on your responsibilities. In 1985, the Supreme Court of Florida in the Johnson v. Davis case, held that where the seller of a home knows facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose those facts to the buyer. For example if you are aware of a leak which you consider to be a minor leak in the roof which shows itself only by a slight discoloration in a corner of your attic space, this fact must be disclosed to the buyer. Your failure to do so could result in the buyer properly being able to rescind the contract or being able to sue for damages after closing. Other Florida cases have made it clear that the requirement to disclose applies even to "as is" sales. It is a seller’s obligation that simply cannot be contracted away.
Selling a home involves many considerations and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.
Title Insurance
Generally a contract for the purchase and sale of real estate will require the seller provide a commitment for title insurance showing that the seller has marketable title to the property. Title insurance will also identify all liens, easements and mortgages which affect title to the property. The commitment will also identify subdivision covenants and restrictions if they exist and relate to your property. The commitment and all easements and encumbrances should be reviewed and examined by your attorney prior to closing. Most contracts for purchase and sale allow the purchaser a reasonable time to review the title insurance commitment and to give the seller notice of any problems the title company has identified. The seller then is generally given thirty or sixty days to remove the cloud on title. If the seller is unable to do so, most contracts allow for termination of the contract by the buyer and for the return of the buyer’s earnest money deposit. Title insurance is important to the buyer. If a title problem arises after closing which was not disclosed by the commitment, the insurance company must cover all costs of clearing title and compensate the insured for losses ultimately incurred.
It is important to remember that title insurance protects you against matters which are reflected in the public records and which affect title to the property. Title insurance does not afford protection against physical property damage, unrecorded easements or that the property can be used for any specific purpose.
A good title agent will eliminate the headaches associated with documenting a closing and ensure a smooth transfer for all parties. Many attorneys offer title insurance.
Title Insurance covers many aspects of real estate ownership and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.
Survey
Under the standard contract for residential real estate transactions approved by the Florida Bar and the Florida Board of Realtors, the cost of obtaining a survey is placed upon the buyer. This is also the general standard in commercial transactions. You will, most likely, need to obtain an updated or new survey to satisfy a lender’s requirements and the requirements of a title insurance company. Your seller should have a survey that was obtained in connection with acquiring the property. If the same surveyor can be used it may be less costly. Also, title companies, in connection with residential transfers, may now accept an affidavit from the seller accompanied by an outdated survey (one that is more than 90 days old) and delete exceptions in its title insurance coverage relating to matters of survey.
It is recommended that a survey be obtained in connection with any purchase of any type of real estate. Only a survey will show encroachments onto property or encroachments off of property onto adjoining lands such as fences, sheds, slabs, houses and other structures. The survey should show the location of all known easements of any kind. In preparing the survey, the surveyor may discover errors in the legal description of the property. Too often errors are repeated in deed after deed and carried forward for years. The older the origin of such a defect, the more difficult and costly the problem will be to correct. The survey will show the size and shape of the property. The shape of the parcel is often difficult to visualize, especially where a "metes and bounds" type legal description is used and sometimes the shape of the property alone renders it unsuitable for the purchaser. The means of accessing the real estate will also show on the survey sketch, which can avoid a post closing problem with ingress and egress.
The survey should be properly certified by the surveyor and indicate that it was prepared for the benefit of the buyer, the seller, the title insurance company, the lender and your attorney. The survey should be current, which presently means not more than ninety days old, as of your closing. The survey should be reviewed by your attorney well in advance of closing so that any questions can be discussed with the surveyor and any problems can be disclosed to the other party.
Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.
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