In Real Estate, Who Represents Whom? – Settlement Attorneys

By Nana Nyarko

Intern, Press, Potter, Dozier, LLC

Intern, Counselor’s Title, LLC

JD Candidate May 2013

Catholic University of America, Columbus School of Law

Last week, we introduced the difference between a listing agent (also known as the seller’s agent) and a buyer’s agent in a real estate transaction.  This week, we review the role of the settlement attorney and the overall settlement process in the purchase and sale of real estate.

The Settlement Process

The settlement (also called a closing) is the conclusion of the real estate transaction.  This is the point when the buyer’s and lender’s funds are put in an escrow account and the lender’s documents are signed by the buyer and seller.  At settlement, the parties sign a HUD-1, which is the settlement document used nationwide to disclose, in line-item detail, all financial adjustments, amounts due and disbursements pertaining to the transaction. Assuming final numbers are available, the parties receive a copy of the HUD-1 for review on the day before settlement.

The Settlement Attorney’s Role

Settlement attorneys oversee all closing services needed to complete a real estate sale or purchase. They are responsible for closing the transaction in accordance with the contract of sale, the lender’s loan closing instructions and state and federal laws.  In many jurisdictions, buyers have the right, by law or custom, to choose their settlement attorney.  However, in some instances, such as the purchase of a newly constructed home being purchased from the builder, the buyer receives a discount on closing costs if the seller’s settlement attorney is selected to conduct settlement.  For the seller, the settlement attorney accurately pays off the seller’s existing mortgages, prepares and records the deed and disburses funds.  

The settlement attorney is a fiduciary who is a neutral third party; despite buyers’ and sellers’ impressions, the settlement attorney does not represent either of the parties to the transaction.  The settlement attorney represents the total transaction itself to guarantee a successful closing.

On behalf of the buyer, the settlement attorney ensures that the title to the property is clear before closing by conducting a title search, reviewing the title report and clearing any clouds (issues relating to clear title) on title before closing. The settlement attorney also provides the buyer with owner’s title insurance (which is optional) and lender’s title insurance, the latter of which is required by the lender.

Representing the lender’s interests, the settlement attorney makes certain that, before disbursement of the lender’s funds occurs and the deed is recorded; all of the lender’s documents and the deed are complete, signed and notarized by the appropriate parties.  The settlement attorney is also responsible for making sure the deed and mortgage (or deed of trust depending on the jurisdiction), are recorded in the land records.

The settlement attorney is the final stop in completing your real estate transaction successfully, so be sure to chose an experienced one with a committed team.

For help with all your settlement needs contact Counselors Title, LLC at bethesda@ctitle.com.

For help with other residential and commercial real estate and business needs contact the attorneys at Press, Potter & Dozier, LLC at http://www.presspotterlaw.com/