Residential Real Estate Transactions
In North Carolina an experienced real estate attorney should be retained in order to facilitate the closing process. The acquisition of real estate inevitably involves the rendering of legal services and should not be entrusted to non-lawyers. The purchase and subsequent sale of your home will most likely be the largest and most important financial transactions of your life.

In order to ensure the smooth and proper handling of such a transaction, it is a good idea for both the Seller and Purchaser to consult with an attorney of their own choosing before they sign a contract for the sale and purchase of the home. An attorney is best able to advise you of potential problems with the transaction or the contract document itself and help solve those problems before you enter into a legally binding obligation. If you are unable to consult with your attorney prior to signing the contract, you should sign subject to your attorney's approval. Even if you have not consulted with an attorney during the contract process, you may, and should, select one to assist you to complete the transaction. Before you actually retain an attorney, it is important that you understand the fundamental steps of a real estate transaction and how an attorney can assist you through it.

Title Examination
When purchasing a home, it is important to know that the Seller has marketable title to transfer. One of the closing attorney's responsibilities is to examine the public land records to determine the condition of the Seller's title to the property. This examination will disclose:

a. whether the Seller is in fact the legal owner of the property;
b. that the "estate" or degree of title you have agreed to purchase is currently and properly owned by the Seller;
c. the presence of unpaid mortgages, judgments or other liens which must be satisfied before "clean" title can be conveyed to you;
d. restrictions, easements, or rights of way for roads, alleys, utilities, etc. affecting the property which may give rights to others or may limit your rights even though you will own the property; and
e. the status of property taxes and other public or private assessments.

It is also important for the Seller to be aware of the condition of his or her title to the property being sold, because it is customary in North Carolina for the Seller to give the Purchaser a "General Warranty Deed" to the property upon closing the transaction. If any defects in title exist, the Purchaser may have cause to bring suit against the Seller for violation of the warranties in the deed. An attorney, aware of any such title defects, should be able to resolve or "cure" them prior to the closing, avoiding the necessity of any litigation concerning title to the property.

Owner's title insurance, which is typically paid for by the Purchaser, further guarantees that the Purchaser is acquiring a "clean" title to the property and protects the Purchaser from future problems with his title. It is customary that the Purchaser pay for a similar policy for his Lender, usually to satisfy the Lender's requirements. Title insurance is issued based upon the title certificate of the attorney. Owner's title insurance may provide protection up to the amount of the purchase price of the property and includes the court costs and attorney's fees incurred to defend any title claim. The owners must cooperate with the title company in defending any title claim should one arise.

Survey
Most lenders require that they be given a survey of the property showing the location of the dwelling, other structures and fixtures (such as fences) on the property and that they are within the boundaries of the property. An attorney may procure such a survey and should be able to examine it and determine that no problems exist. As a cautious Purchaser, you should insist upon such a survey even if your Lender does not require one. Title Insurance survey coverage based on a prior survey and Seller's affidavit as to no changes may in some instances be satisfactory to the Buyer.

Documents
An attorney will usually be responsible for the preparation and/or examination of all of the documents necessary to complete the transaction. Such documents include the Deed, Note, Deed of Trust, Closing Statement and other related loan, IRS and insurance documents.

Closing
The final settlement or closing of the transaction will be conducted by your attorney. At the closing, the parties, their attorneys and real estate agents will assemble at a place and time most convenient to everyone. The closing documents will be explained, executed and exchanged and all financial matters relating to the transaction will be reviewed and approved by the parties. Remember that the closing attorney primarily represents the Purchaser at the closing and so you should feel free to present any questions you have to your attorney. Any legal opinion related to the closing documents must be rendered by a licensed North Carolina attorney.

After the Closing
An attorney's job does not end at the closing. Details such as ensuring that all documents are properly recorded, obtaining releases of liens relating to the Seller's interest, and obtaining title insurance policies are attended to after the date of closing.

An attorney's role in real estate transactions, therefore, may include consultation prior to the signing of a contract, the actual preparation of a contract or approval of one already prepared, title examination, preparation, examination and explanation of closing documents, presiding over the closing of the transaction, and supervision of the post-closing details. All of this work is done in cooperation with the Purchaser, Seller, Lender, Surveyor and Realtors.

Choosing Your Attorney
Because many attorneys today are specialized, it is important that the attorney you hire to represent you in the sale or purchase of your home be familiar with current real estate practices in your area and the law as it relates to real property transactions. The North Carolina State Bar has certified attorneys who are acknowledged as "specialists" in the area of real property law, although any attorney licensed to practice law in the State may practice real estate law. You should feel free to discuss, before hiring an attorney, the details of the transaction, the services to be provided, and the costs and fees you will be charged. Christopher M. Wyne, of our firm, has been certified as a specialist in commercial and residential real estate law by the North Carolina State Bar Board of Legal Specialization since 1990.