FAQs
I’m selling my home. Do I have to attend the closing?
No. You’re free to attend if you like, but most sellers nowadays do not attend closing given the relatively few documents a seller has to sign. I typically will meet with a seller client in advance of closing to sign the deed and a power of attorney authorizing me to sign the closing documents on their behalf.
How soon after closing can I move in?
Sometimes a seller will hand over keys at closing, however the seller doesn’t have to grant access to the property until the deed is recorded with the registry of deeds. Depending on registry volume and the method of recording (electronic or physical delivery), the deed may not be recorded until an hour or two, or even longer, after the parties complete signing. The registry of deeds only accepts recordings until 4:00 PM so depending on the timing of closing, the recording may not take place until the next business day. Due to the uncertain timing of recording, I recommend that buyers try to avoid scheduling movers for the day of closing.
What if the buyer needs to move in before closing, or a seller needs to remain in the property after closing?
If the parties are in agreement, I can prepare a use and occupancy agreement granting the buyer the right to occupy the property prior to closing, or allowing the seller to remain in the property for a specified period after closing. If the need for a use and occupancy agreement is anticipated, it’s important that the parties negotiate the terms as early as possible, preferably in the offer to purchase. The use and occupancy agreement, sometimes incorrectly referred to as a “lease back”, will address matters such as liability for damages to the property during the occupancy period, responsibility for utilities, and the fee, if any, to be paid for the occupancy. These agreements normally contain language stating that a landlord-tenant relationship is not created.
I plan on submitting (or have received as the seller) an offer to purchase for a property. Should I have an attorney review before signing?
Yes! Normally prepared by the buyer’s realtor, the offer to purchase is the initial binding contract between the parties containing important terms such as purchase price, deposit amount, closing date, inspection and financing contingencies. Unless the parties mutually agree otherwise, the terms contained in the offer will be carried forward to the purchase and sale agreement, which is a more detailed document representing the final contract between the parties. Disputes often arise during purchase and sale agreement negotiations over vague or ambiguous offer language, or omission of key terms.
I’m financing my purchase with a mortgage. Should I just use the bank attorney to represent me?
Ethical rules in Massachusetts allow an attorney to represent both buyer and lender in the same transaction, provided both parties consent to this dual representation after consultation. If your lender’s attorney offers to represent you personally in connection with a transaction, be sure the terms of that representation (fee and scope of services) are confirmed in writing, preferably through a signed engagement letter.
I have power of attorney for my elderly mother, who needs to sell her home. Can I sign the deed and other closing documents on her behalf under the POA?
Due to the risk of fraud, closing attorneys and title insurance companies generally want to avoid having a deed signed by someone other than the owner under a power of attorney unless absolutely necessary, for example, where the owner doesn’t have capacity to sign a deed. Inconvenience alone in obtaining the seller’s signature normally won’t suffice. If circumstances allow for POA signing, the power of attorney document must give the appointed person express authority to sell the owner’s real estate, and the original signed and notarized POA must be recorded at closing.
Can I sign the closing documents remotely?
Currently, deeds and mortgages (and most other documents) submitted for recording with the registry of deeds in Massachusetts must contain an original ink signature and must be notarized. An in-person meeting is therefore necessary for execution of the closing documents. Some lenders offer a “hybrid” closing where a portion of the documents are signed electronically and a smaller package of documents are signed via ink signatures. The hybrid closings tend to be more efficient, and allow attorney and buyer more time to focus on the most important closing documents.
What is the most common problem you encounter with real estate titles?
Title defects involving undischarged or improperly discharged mortgages are common. When a mortgage is paid off the lender must record a discharge with the registry of deeds releasing their lien from the property. For various reasons, mortgages that are paid off are not always properly discharged. The homeowner typically doesn’t become aware of this problem until they go to sell or refinance the property. The timing to obtain a discharge to clear up a title varies depending on when the loan was paid off and whether the lender is local and still in business. A property with an undischarged mortgage would not satisfy the title requirements imposed on the seller in the typical purchase and sale agreement, and could lead to a delay in closing.
Does anyone actually read all of these [closing] documents?
Buyers typically don’t take the time to read through all the documents word for word, which is understandable given the volume of documents to be signed on a transaction with a mortgage. It is of course important for the Buyer to understand what they’re signing, given the size of the investment in a new home and the various rights and obligations described in the closing documents. An experienced closing attorney can help the Buyer focus on the more salient terms in the documents in order for the closing to be completed in a timely and efficient manner