Articles Posted in Real Estate

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Spring is in full bloom on the North Shore.  The trees are green again and pollen abounds.  “Open House” and “For Sale” signs grace the lawns of homes in Reading, Wakefield, Lynnfield, Peabody, Lynn and across the North Shore.  Spring is a great time for Buyers and Sellers.  A green lawn and blooming flowers help draw Buyers’ eyes and may enhance a home’s value.  Whether buying or selling a home, having a lawyer on your side from the beginning can help the process go smoothly.  Real estate closings are just one instance where buyers and sellers alike may want to consider hiring an attorney.

commerce-acts-books-477966-mNavigating an offer to purchase and then a purchase and sale agreement and finally the real estate closing can have challenges.  For one thing, paperwork with complex terms and forms can be confusing.  Negotiating the terms of the offer before signing anything, may prove very important.  Purchasing a home is a big investment; make sure you are protecting your investment from the beginning.  Closings can be particularly challenging if there are issues that arise from the title examination or the home inspection.  If you are unsure if you should handle a closing on your own, the best solution would be to hire an attorney to represent your interests and handle the details.

When it comes to getting answers to questions about a possible real estate transaction, it is invaluable to ask a lawyer who specializes in real estate.  You wouldn’t ask your local supermarket manager a question about a healthcare concern nor would you ask your doctor if the supermarket fish special is fresh!  Why then would you ask anyone other than a real estate lawyer a question about a real estate transaction?  Finding the real estate attorney may be a critical part of purchasing or selling a home.  Buying a home is a significant investment of both time and money and can be worrying for first-time home buyers and more experienced buyers and sellers.  Even if you have a family lawyer or a close friend that is a lawyer, it is important that you consider hiring an experienced real estate attorney to represent you for a sale, purchase or refi and to better protect your rights and interests.

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There are so many beautiful areas throughout Essex County, Middlesex County and the North Shore.  Raising a family, owning a home or renting an apartment, working or working out; all of these activities can result in the need to sign legal documents, Deeds, Wills and the like.  Often a signature on a legal document will require an acknowledgment from a notary public.  So just what is a notary acknowledgment?

commerce-acts-books-477966-mAccording to Revised Executive Order No. 455 (04-04) Standards of Conduct for Notaries Public a “Notary public” or “notary” means any person commissioned to perform official acts pursuant to Article IV of the Articles of Amendment of the Massachusetts Constitution and a “Notarial act” and “notarization” shall mean any act that a notary public is empowered to perform under this executive order.  An “Acknowledgment” is a notarial act in which an individual, at a single time and place: (a) appears in person before the notary public and presents a document; (b) is identified by the notary public through satisfactory evidence of identity; and (c) indicates to the notary public that the signature on the document was voluntarily affixed by the individual for the purposes stated within the document and, if applicable, that the individual had authority to sign in a particular representative capacity.

The notary acknowledgment is the same whether it is on a deed to a home, a mortgage, a Will, or even an Affidavit.  The acknowledgment is used to prove that the person who signed the instrument was the person intended to sign the instrument, that the signature is genuine, that the signor understood what they were signing and did so of their own free will and voluntarily.  It is important that the notary acknowledgment be properly completed because if not, the instrument could be rendered ineffective.  For example, as found in a recent bankruptcy case in Massachusetts (see Massachusetts Lawyers Weekly, Mortgages—Acknowledgement—Voluntariness by Tom Egan), In Re: Reznikov, Fanni (Chapter 7 Case No. 14-10589-FJB; Adversary Proceeding No. 15-1003-FJB) the Chapter 7 trustee challenged the validity of a mortgage arising from a question on the sufficiency of the notary’s acknowledgment.  The Chapter 7 trustee sought to “avoid a mortgage held by James B. Nutter & Company” granted to James B. Nutter & Company by the bankruptcy debtor, Fanni Reznikov.  The trustee argued that the “mortgage was defective under Massachusetts law because it does not express that the debtor executed the mortgage voluntarily or as “her free act and deed”.   James B. Nutter & Company as the holder of the mortgage tried to refute the trustee and argued that because the Acknowledgement stated that the Debtor ‘duly acknowledged to [the Notary] that [she] executed the [Mortgage].’ that should be “sufficient to express that the Debtor indicated to the Notary that she executed the Mortgage voluntarily or as “her free act and deed”.  The Bankruptcy Court judge disagreed and ruled that the notary acknowledgement was “materially defective because it fails to represent that the Debtor indicated to the Notary that she executed the mortgage voluntarily or as her free act and deed”.  The mortgage was deemed not a valid lien.

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The North Shore of Massachusetts is a great place to buy a home or to invest in real estate.  Purchasing a home may be your largest single purchase and perhaps your biggest investment.   When you spend a lot of money for real property, it is important that your home or property have clear, record and marketable title.  Just what is title?  According to the First American Title Insurance Company, title is “(1) A combination of all the elements that constitute a legal right to own, possess, use, control, enjoy and dispose of real estate or a right or interest therein.  (2) The rights of ownership recognized or protected by the law”.

commerce-acts-books-477966-mIn Massachusetts a proper title search goes back at least 50 years.  But if you want to know the whole history, the search may go back as far as the 1620 Mayflower Compact.  The Mayflower Compact was the original creation of a “civil body politic” in Massachusetts and created the first rights of private land ownership.

Title is ownership of the land and improvements on it.  When property is transferred to one person from another, that transfer is a piece of what is referred to as the “chain of title”.  With each transfer, there is the potential for a problem to develop or arise.  According to Old Republic National Title Insurance Company, a “title” consists of three elements:

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In Massachusetts the real estate market has come into balance; perhaps a seller’s market.  Homes, condos and buildable house lots are in demand. With four beautiful seasons, from Boston to the Berkshires, living in Massachusetts is wonderful.  Gloucester has amazing seafood, Salem the witchcraft history and legends, Lynn, Lynnfield, Saugus and Wakefield have outstanding restaurants, shopping and nightlife.  Have you been to the Market Street shops in Lynnfield yet?  There is something for everyone.  Living on the North Shore is fantastic, and once you’ve found the perfect house or condo all you need is the right North Shore closing attorney to seal the deal.

commerce-acts-books-477966-mRegardless of whether you are the Seller or the Buyer, you should have an experienced closing attorney to handle your real estate transaction.  Real Estate Bar Association v. National Real Estate Information Services, Inc. ruled that an attorney is required to conduct residential home closings in Massachusetts.  Keep in mind that the closing attorney generally only represents the lender (the Bank) and it’s a good idea for the Buyer and Seller to each have their own lawyer at the closing.  The Lawyers’ responsibilities at a closing are different than those of the broker or real estate agent.  The attorneys make sure title is good, complex closing documents are done right, explain what is being signed and can resolve any last minute problems that come up.

The usual first step to buying or selling a home is the “offer to purchase”.  Beware, this is a binding contract!  John J. McCarthy, Jr. vs. Ann G. Tobin; Robert DiMinico  holds that an offer to purchase real estate “created binding obligations” of both the Buyer and Seller.  The Buyer is contractually obligated to purchase the property and the Seller is contractually obligated to sell the property.  This decision ruled that the Purchase and Sale Agreement is a mere formality unless the offer states otherwise.  You should speak to your attorney, before you sign the offer.  Once it is signed you may be legally obligated to that contract.

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