When is the Best Time to Hire an Attorney
when Buying or Selling a Home?

Many consumers in real estate transactions are under the impression that the only reason they need to hire an attorney is to review the Purchase and Sale Agreement. However, as a result of recent case law in Massachusetts, it would be in the consumer's best interest to hire an attorney before they even make an offer to purchase or sell the property. In the most recent case of McCarthy v. Tobin, 429 Mass. 84 (1999), the Massachusetts Supreme Judicial Court held that a signed offer to purchase by both buyer and seller will indicate that the parties entered into a binding contract even when the offer to purchase required the parties to negotiate a Purchase and Sale Agreement, provided that it includes such material terms as: price to be paid, a description of the property, deposit requirement, limited title requirements, and the time and place for closing. [McCarthy, 429 Mass. 84 (1999)]

Justice Ruth Abrams wrote "[If] the parties have agreed upon all material terms, it may be inferred that the purpose of a final document (Purchase and Sale Agreement) which the parties agreed to execute is to serve as a polished memorandum of an already binding contract." [McCarthy, 429 Mass. 84 (1999)]. As a result of this new case law, many consumers may be unknowingly entering into binding contracts.

To best protect your own interests when buying or selling a piece of property, it is recommended that a prospective home buyer or seller obtain counsel from the very beginning, before any terms or promises are put into writing. Have your attorney review any offer or written document before you sign it, so you know that the document serves your best interest, and you will likely encounter a smooth and fair transaction. Good luck in any future purchases or sales, and I hope that this message is of help to you in your search for a fair deal in any real estate transactions you may be involved in.

- Brian G. Callahan

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