With 44 years experience in the practice of law, Mark Perlman has provided legal services in all areas of real estate law. As an agent for Old Republic National Title Company and its predecessor, Lawyers Title Guaranty Fund since 1982, Mr. Perlman has extensive experience in examining title and issuing title insurance policies for all types of real estate transactions and mortgages.
DOESN'T A REALTOR OR A TITLE COMPANY HANDLE MY CLOSING?
For many people, buying real estate is the largest single purchase that they will ever make. Yet many Buyers and Sellers of real property believe that it is not necessary to hire an attorney, since the realtor and the title company will provide protection. Unfortunately, this common misconception can sometimes be a very costly mistake.
Contrary to the belief of many people, Realtors in Florida generally do not represent either Buyer or Seller. Florida Statute 475.278 provides that realtors are “Transaction Brokers”, and that they do not represent either the Buyer or Seller, unless there is a written contract to the contrary. "Transaction Brokers” therefore claim to represent “the deal”, rather than the Buyer or the Seller.
“Transaction Brokers” have only limited confidentiality, meaning that where known, a “Transaction Broker” is not required to disclose that the adverse party may accept or offer more or less than the price being discussed. “Transaction Brokers” are not required to disclose the motivation of the adverse party to buy or sell, the willingness to provide or accept private financing or any other information requested to remain confidential.
Since the Realtor prepares the contract, how can a Buyer or Seller be assured that the contract will be in their own best interest, when the Realtor is not their agent? The Residential Contract for Sale and Purchase currently in use by Realtors in Florida consist of twelve (12) pages of single spaced, small print clauses and may contain up to twenty-eight (28) additional standard form Addenda, contractually governing every aspect of the real estate transaction.
Realtors are not licensed to provide legal advice as to the multiple terms and conditions of the real estate contract, and the failure to understand the significance and legal effect of the contract can result in a costly surprise, either at the closing or upon the subsequent sale of the property many years later.
Only an independent attorney can provide legal advice as to the Realtor’s Listing Agreement and the Contract for Sale and Purchase.
Title Companies will issue Title Insurance Policies guaranteeing that Buyers will obtain good and marketable title, free and clear of all liens and encumbrances.
First, you should be aware that Title Companies, even those owned and operated by Florida licensed attorneys, do not provide legal representation in a real estate transaction, unless a separate agreement is entered into usually requiring the payment of a separate fee.
Accordingly, Title Companies do not represent the Buyer in any dispute with the Seller and will not provide protection beyond the guarantee contained in the Title Insurance Policy itself.
Second, Title Insurance Policies may contain loopholes. A careful reading of your Title Commitment will disclose Schedule B-II, which contains exceptions from coverage; in other words, areas that are not covered by Title Insurance.
Many Buyers who are relying on Title Insurance Companies to protect them, never read the Title Commitment, are unaware of the Schedule B-II exceptions and don’t find out about limitations on insurance coverage until it is too late. If a problem arises in the future, the Title Company generally states that it disclosed the exception from coverage in writing in Schedule B-II of the Title Policy and therefore, that it is not responsible for the problem.
An independent attorney who provides a Title Insurance Policy as an agent of a reputable title insurance company can be expected to include only standard and legally required exceptions to coverage in Schedule B-II of the title insurance policy.
Realtors and Title Companies therefore do not provide the protection that many people believe they are obtaining in closing a real estate transaction without an attorney.
An attorney fully experienced in real estate law and closings can provide protection for what is generally the largest single transaction that you will ever be involved in.
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