Frequently Asked Questions
Do I need a lawyer for my closing?
In most circumstances, yes. According to an April 2011 ruling from the Massachusetts Supreme Judicial Court, an attorney must participate in most aspects of real estate closings in the state. That’s the legal side of things. Practically speaking, a home is the most expensive asset a person will own. Why not ensure that your interests are protected and your closing is done correctly? By hiring a real estate lawyer when you are buying or selling a home, you avoid unpleasant surprises.
What are the real estate attorney’s roles and responsibilities before, after and during a closing?
Before you contract to buy the property, we will review your purchase and sale agreement and the other documents associated with your transaction. Prior to the closing, we will conduct a title examination to make sure the property is free of any defects, liens, judgments, easements or other factors that would encumber a sale. This verifies that the seller is able to convey a clear and good title to the property. We’ll also set up your title insurance to protect you from any such encumbrances on the title. There may be seller’s disclosures, broker’s agreements, Realtor contracts, binders or other legal forms involved. If the property is a condominium, there will be condo documents, including bylaws unique to the association. We will make sure that you understand what the content of those documents says and what effects, if any, each one has. We will prepare everything as a set of closing documents to be processed at the closing. Finally, your attorney will attend the closing with you and ensure that clear title is transferred. Afterwards, it is the attorney’s job to record all relevant documents at the registry of deeds.
How long will my closing take?
The purchaser should plan on spending an hour or more on a residential real estate closing, if the circumstances are ordinary. Sellers don’t have as many documents to sign, so they typically need less time.
Do I need title insurance?
Title insurance proves that you own your home with no liens or other claims on it, aside from any noted on the policy when it is issued. If information on your policy is not correct and there is a claim against your ownership, the title insurance company must pay the attorney’s fees to defend you against this claim. If the claim is determined to be valid, the title insurance company will either pay it (up to the amount of the policy) or, at their own expense, work to correct the defect in title. Your lender will protect their interest in the property by requiring you to purchase a loan policy. This policy will not protect you, however; you must purchase an owner’s policy for that purpose.
How are zoning laws and the lawful use of land determined?
Zoning laws consist of local ordinances and regulations that control how land may be used and developed, based on various inherent factors. Most restrictions on land use are regulated by the municipality, with allowances for special land use boards that may have jurisdiction over particular aspects of development. This is especially likely in coastal areas like the Newburyport area. Simply stated, land use is usually within the jurisdiction of the planning board and the zoning board. Most cities and towns also have Conservation Commissions, which, among other things, review applications against the requirements of the Wetlands Protection Act. The Greater Newburyport area has a rich history and centuries-old structures both commercial and residential. To that end, many of the cities and towns have historical commissions, which work to preserve historic elements in homes, buildings and landscape.
How will I know if my intended use of my property is within the law?
If you aren’t already working with a real estate attorney, you can start by phoning the planning or building department in the community where the property is situated. Their personnel can give you a general answer as to how your proposed land use may be handled: whether it will be denied, if it will need a special permit or a special exception, or if it may be “permitted as of right,” meaning it is code-compliant and no variance is needed.
What if my building permit application is denied?
If your application is turned down as a result of noncompliance with zoning, you may submit an application for an appeal of that denial, to be followed by a public hearing before the Zoning Board of Appeals (ZBA). The ZBA is responsible for deciding whether certain regulations should be waived for particular cases and whether permission should be granted for a particular use of property. A comprehensive application including, but not limited to, plans showing proposed and existing features, along with a well reasoned memorandum articulating why you are entitled to a permit under the zoning ordinance or by-law is essential. A real estate attorney can help you prepare this application.
My property looks dry to me, but I’m told it is in a wetlands area. How can that be?
If your land is not adjacent to a body of water, it may still be considered a wetlands area. That’s because these areas are defined by statute according to the soil type on the lot. You may be required to obtain a review of your land from the conservation commission and/or any other committee with jurisdiction. You must then prove, by hiring a soil scientist, land surveyor, and perhaps other professionals, that your planned project wouldn’t adversely affect the wetlands.
If there is a public hearing for my project, will I need an attorney’s representation?
Since the purpose of your appearance at the hearing is to present your project for the approval of the board members, you may feel more confident having an attorney represent you. If you have involved a real estate attorney in the application process, he or she is familiar with the circumstances, and it is sensible to continue with representation. The hearing process consists of the presentation of your application, the municipality’s response, and questions from the commission/board members, as well as input from any abutters who attend the hearing and wish to voice their opinions on the project. The commission may either announce its decision at the end of the hearing or choose to consider it further and announce the decision later. Once the decision is made and filed with the city or town clerk, appeals may be made to the Land Court or Superior Court within 20 days thereafter.
I received an abutter’s notice about a proposed use in my neighborhood, and I do not support the project. How do I oppose it?
The first step is to go to your municipality’s planning or building office to review the full application. This will include all of the plans, drawings, reports and other information associated with the proposed project. Look through every item thoroughly, and note anything you believe to be inaccurate or otherwise misleading. You might also want to find out if any other abutters oppose the project; if so, you may decide to work together. If your opposition is great enough, you can consider hiring experts who can produce evidence that supports your viewpoint and brings it to light before the board.
If my opposition fails and the application is approved, can I appeal the board’s decision?
Yes, within 20 days of the filing of the decision with the city or town clerk’s office. You should consult with a real estate attorney experienced in land use litigation to determine your changes of prevailing on the appeal prior to filing.