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| What About Realtors Drafting Legal Contracts? |
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Hmmm. As a real estate attorney for many years, I saw many poorly drafted
contracts as well as contracts that ended up in major litigation, all drafted by
real estate agents. Now, let's be straight here. There are many outstanding
Realtors who draft excellent language, but there are a number who do not.
But let's face it, Realtors are not trained lawyers. It is unquestionably a bit
unfair, in my opinion, to expect them to draft perfect contracts that are
measured against the same standard as contracts carefully drafted by
experienced real estate attorneys. On the other hand, isn't that what the
public expects?
Ultimately, you as the client are responsible for the agreements you sign,
regardless of who drafted them. You and you alone will be held accountable
for any language that is ambiguous or missing or wrongly drafted. The
reason I write briefly about this issue is because it is a major issue, and yet
few people even consider it an issue. It's the question you never ask that
can hurt you. In other words, you don't get answers to questions you never
ask.
If you are thinking that a good answer is to have your Realtor-drafted
contract reviewed by an attorney, you may have false expectations.
Attorneys are generally not knowledgeable about real estate sales or the
negotiating process in a real estate transaction. Nearly every general
practice attorney when asked if he handles real estate, answers with a quick
yes. There are not very many experienced real estate attorneys. If you talk
to almost anyone in the real estate business, you will find out that attorneys
are known for being "deal killers." I can testify from my own experience that is
generally true. Attorneys are more deal killers than facilitators. Very few
attorneys started in real estate sales and went into real estate law.
It is a bit of a pain to have to hire both a good Realtor and a good real estate
attorney, but that's just about what it boils down to. Of course, that gets
expensive, too.
If you are using a Realtor, or shopping for a good Realtor, one consideration
is how much trouble he has been in for drafting poor language in prior
transactions or litigation. That's kind of a touchy subject. One hates to ask,
"Have you been involved in a lawsuit?" Even if an agent wasn't a named
defendant, he may have had clients who ended up in litigation because of
language he drafted. If you asked, would he tell the truth? Hmm. If he wasn't
a named defendant but was the cause of the litigation, how would you ever
find out? You probably wouldn't. Of course, he may have gotten sucked into
litigation without any justification and without any wrong doing.
RECOMMENDATION. If you are using a Realtor, make sure he is practicing
at the same competent level as an attorney in drafting contract language. If
you don't have that kind of Realtor, you probably should retain a good real
estate attorney. Of course, you could also search for a Realtor who was a
Real Estate Attorney. Good luck finding one of those!
contracts as well as contracts that ended up in major litigation, all drafted by
real estate agents. Now, let's be straight here. There are many outstanding
Realtors who draft excellent language, but there are a number who do not.
But let's face it, Realtors are not trained lawyers. It is unquestionably a bit
unfair, in my opinion, to expect them to draft perfect contracts that are
measured against the same standard as contracts carefully drafted by
experienced real estate attorneys. On the other hand, isn't that what the
public expects?
Ultimately, you as the client are responsible for the agreements you sign,
regardless of who drafted them. You and you alone will be held accountable
for any language that is ambiguous or missing or wrongly drafted. The
reason I write briefly about this issue is because it is a major issue, and yet
few people even consider it an issue. It's the question you never ask that
can hurt you. In other words, you don't get answers to questions you never
ask.
If you are thinking that a good answer is to have your Realtor-drafted
contract reviewed by an attorney, you may have false expectations.
Attorneys are generally not knowledgeable about real estate sales or the
negotiating process in a real estate transaction. Nearly every general
practice attorney when asked if he handles real estate, answers with a quick
yes. There are not very many experienced real estate attorneys. If you talk
to almost anyone in the real estate business, you will find out that attorneys
are known for being "deal killers." I can testify from my own experience that is
generally true. Attorneys are more deal killers than facilitators. Very few
attorneys started in real estate sales and went into real estate law.
It is a bit of a pain to have to hire both a good Realtor and a good real estate
attorney, but that's just about what it boils down to. Of course, that gets
expensive, too.
If you are using a Realtor, or shopping for a good Realtor, one consideration
is how much trouble he has been in for drafting poor language in prior
transactions or litigation. That's kind of a touchy subject. One hates to ask,
"Have you been involved in a lawsuit?" Even if an agent wasn't a named
defendant, he may have had clients who ended up in litigation because of
language he drafted. If you asked, would he tell the truth? Hmm. If he wasn't
a named defendant but was the cause of the litigation, how would you ever
find out? You probably wouldn't. Of course, he may have gotten sucked into
litigation without any justification and without any wrong doing.
RECOMMENDATION. If you are using a Realtor, make sure he is practicing
at the same competent level as an attorney in drafting contract language. If
you don't have that kind of Realtor, you probably should retain a good real
estate attorney. Of course, you could also search for a Realtor who was a
Real Estate Attorney. Good luck finding one of those!
Thousands of
transactions are
drafted successfully
by Realtors around
the country every
day of the week.
The concern you
should have is not
about successful
transactions, but
about the minority
of unsuccessful
transactions that
cause good people
great anguish, stress,
and legal fees.
transactions are
drafted successfully
by Realtors around
the country every
day of the week.
The concern you
should have is not
about successful
transactions, but
about the minority
of unsuccessful
transactions that
cause good people
great anguish, stress,
and legal fees.