Scott has worked as a real estate lawyer for 10 years.
How to Avoid Pitfalls at the Closing Table
people found Scott's experience helpful.
We call ourselves “dirt lawyers.” For nearly 10 years, I have represented buyers, sellers, and lenders in real estate transactions throughout the United States. The deals ranged from a young family’s first home to a 50-story mixed-use skyscraper. I’ve seen it all at the closing table. I've found that there are common, easily avoidable issues that come up again and again in home sales.
Don’t Keep It Simple
Everyone wants a “simple” contract. Most people are scared away by lengthy documents with lots of terms and conditions. But the truth is that the terms and conditions are there for a reason. For every paragraph, someone had to fight a lawsuit. It’s best to have all of the terms of an agreement spelled out on the front end. It may take longer to negotiate and sign the contract. But the few extra hours spent writing out details at the beginning will save thousands of dollars and months of fighting when something goes wrong.
Of Courts and Cocktail Napkins
Early in my career, I was representing a person in a breach-of-contract lawsuit. The buyer said that there was a valid contract, the seller didn’t sell to him as agreed, and the buyer wanted the court to give him the house and force the closing. The seller said that the buyer breached the sales agreement, and the seller no longer had to sell. The first thing we do in this type of case is look at the terms of the contract. One problem: The entire contract was written on the back of a cocktail napkin on the hood of a car!
Fortunately, we had the napkin. Unfortunately, the napkin lacked any information about how this particular dispute would be treated. Statutes and case law will fill in the blanks of a contract, but only after both sides have spent months and thousands of dollars in court.
The Never-Ending Closing
The napkin contract never got to a closing table. The parties started fighting before it could get that far. But similar negligence in drafting will delay or derail a closing.
In my home state, most residential real estate closings take about an hour. One closing I will never forget took 12 hours! The property was an average, middle-class, family residence. Both the buyers and sellers were unremarkable, pleasant, middle-class folks. As was common for this type of closing in my state, my firm represented the mortgage lender. In this capacity, I sat in the “middle” and conducted the closing.
At the closing table, we started going over the important documents. Everything was fine. We were about to start signing when the sellers spoke up. “We didn’t have time to move everything out. Can we have three extra days after closing to get the rest of our stuff out?”
The buyers were shocked and appalled. But there was an illness in the family and the sellers could not complete the move-out. What would happen? Could the buyers evict the sellers? If the buyers did not go through with the closing today, would they be liable for damages? Could the sellers pay rent for the extra days to the buyer? Would the buyers be forced to accept this arrangement?
After hours of arguing, pleading, and creative thinking, the parties worked out a compromise. We continued on with signing the documents when the buyers had a question: “What is the condition of the HVAC [heating, ventilation, and air conditioning] system?” The sellers looked at each other with dismay. The HVAC system had shut down several times over the summer and was in need of major repairs. The buyers were outraged. The system was working when they visited the property. The purchase contract didn’t mention the HVAC system or who would be responsible for pre-existing problems.
Long story short, this went on all day. The parties were dedicated and wanted to close at all costs. At 10 p.m., the house was sold, the documents were signed, and we all needed a drink. Looking back, all of these problems could have been avoided if the parties took the extra time when the purchase contract was being signed to write in a few stipulations about repairs, overstaying, and the condition of essential items in the house.
The Bottom Line
Write out as much as you can in your agreement. Think about all of the possible eventualities and ways things can go wrong. Then, write out the resolution in the agreement. This way, when something goes wrong (and it always does), you and the other side can look at the contract and know how to handle the situation without calling me or one of my colleagues to file a lawsuit.