Release Date: 08/09/2018 Will Martin, Martin & Gifford,
PLLC QUESTION: A buyer has contacted me about buying one of my client’s listings, a small, unimproved lot. He says he does not need representation. He also says he is going to pay cash and does not think he needs to hire a lawyer to close the sale.
Can I work with him without representing him and if so, is there a form for me to use to confirm that I will not be representing him?
Also, does the buyer have to hire a lawyer to do the closing? The “Warning” in paragraph 1(m) of the Offer to Purchase and Contract (form 2-T) seems to say that the answer is yes. What do you think?
ANSWER: Regarding your first question, yes, you can work with the buyer to buy your client’s listing without representing him. All you’re required to do from a paperwork standpoint is confirm that you will only be representing the seller’s interests when you go over the Working With Real Estate Agents publication with the buyer. You do that by checking the box under the “Disclosure of Seller Subagency” part and initialing in the space provided. If the Offer to Purchase and Contract is used to put the property under contract, you should also check the “seller (sub)agent” box in the agent information section.
More importantly, you then need to act like a seller’s subagent. Don’t do anything that might lead the buyer to believe that you are his agent, and take opportunities to remind him that you don’t represent him. For example, if you assist the buyer in completing an Offer to Purchase and Contract, don’t give him advice on what to put in the blanks, especially the “business” terms, and follow up with a quick email reminding him that you represent the seller, not him, and that you told him he should contact an attorney if he had questions about the form.
Regarding your second question, the buyer is not required by law to hire an attorney to represent him in purchasing the property. The Warning in paragraph 1(m) of the Contract is primarily intended to address the use of third-party settlement agents who don’t have licenses to practice law in North Carolina. Having said that, and to put it bluntly, the buyer would be a fool not to hire a North Carolina real estate attorney to help him with the purchase. Among other things, an attorney would perform a title search to ensure that the seller is able to covey good title, and would obtain title insurance providing very valuable protection to the buyer. For the buyer’s protection as well as you own, we suggest you provide him an “Important Notice—Use of Attorney in Real Estate Closing” form to sign. It strongly encourages the buyer to hire a lawyer to handle the closing, and includes an opinion from the North Carolina State Bar on the subject. The Important Notice is not a standard form and thus is not a part of the NC REALTORS® forms library. However, it is available on the NC REALTORS® website. In the Business Center, click on Transact, expand Forms & Contracts and then choose the Non-Standard Forms category.
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