WHY IS IT IMPORTANT FOR A BUYER TO HIRE AN ATTORNEY?
Purchasing a home is the biggest single purchase that a person makes. Therefore, spending $400 to $500 to hire an attorney to safeguard a Buyer’s interest in the purchase, does not seem like too big of an amount to make sure that everything with the closing goes smoothly. A Buyer needs to make sure that they are receiving good title to the property, that they receive the appropriate credits and prorations at the closing, and that the Deed is properly recorded to correctly transfer the property from the Seller’s name to the Buyer’s name.
WHAT ROLE DOES AN ATTORNEY PLAY WHEN THEY REPRESENT THE BUYER IN A REAL ESTATE TRANSACTION?
There are several things that an attorney does to protect a Buyer’s interest:
1) The attorney will review the Contract and advise the Buyer as to the terms of the Contract.
2) The attorney will review the options a Buyer has in taking title to the property.
3) The attorney will review the title commitment and make sure that the Buyer is receiving clean title to the property.
4) The attorney will review the Deed and the transfer declaration prepared by the Seller’s attorney to make sure that the Buyer’s name is spelled correctly, that title is being taken as the Buyer has requested, and that the Legal Description, the Property Index Number, and the Common Address are correct.
5) If you have questions regarding the covenants and restrictions, the attorney will review them with the Buyer to make sure that the Buyer understands them.
6) The attorney will prepare a Settlement Statement and review the credits and prorations with the Buyer to make sure that the Buyer is receiving the proper credits and prorations.
7) The Attorney will attend the closing with the Buyer and review the loan and other closing documents with the Buyer.
Information provided by: Denise Knipp Bates
Thomas, Mamer & Haughey, LLP
Denise Knipp-Bates
Thomas, Mamer, Haughey, LLP
National City Bank Building
30 E. Main St., Ste 500
Champaign, IL 61824
Phone: 217-351-1500
Fax: 217-355-0087
Email: dkb@tmh-law.com
Sam Limentato
306 W Church St
Champaign IL 61820
Phone: (217) 352-1800
Email: slimentato@meyercapel.com
David C Steigmann
Steigmann Law
1807 Woodfield Drive
Savoy, IL 61874
Phone: 217- 351-5818
Email: david.steigmann@steigmannlaw.com
Randy Green
Meyer Capel Law Office
306 W. Church St.
Champaign, IL 61820
Phone: 217-352-1800
Email: rgreen@meyercapel.com
Options for Holding Title to a Property
When a person holds title to land, there are few things to consider. If there is more than one person, such as husband/wife, or business partners, the State of Illinois law allows for title to be held between owners in three ways:
Tenancy in Common: The most basic form of title. In Illinois, if no manner of title is stated, co-ownership is presumed as tenants in common. It means the owners in common own an undivided fractional interest in the property. The owners own an unequal share but may use the entire property. The physical property is not divided. Tenants in common each hold separate ownership interests which can be sold, conveyed or transferred without the consent of the other owners. There is no right of survivorship. When one owner dies, that share of land is transferred by the owner’s will or by the intestacy statute and the owner’s heirs or legatees will become the new owners of that share.
Joint Tenancy: Basically joint tenants with right of survivorship. This ownership may be attained by satisfying the legal requirements of the four unities of ownership to include: time (all tenants must take title at the same time), title (all tenants must take title by the same document), interest (all tenants must have an equal interest), and possession (all tenants have an undivided possession right).
As in tenants in common, all owners have an undivided interest and can use the entire property. The difference is there is a unity of ownership. Upon death of one of the owners any remaining owners will take the rights of the deceased ownership, no new owners can take title. The property will be passed to the surviving owners. Property held in joint tenancy may be partitioned, sold, or encumbered without the consent of the other owners.
Tenancy by the Entirety: This is reserved only for married couples and provides extra protection to marital property. This must be the couple’s homestead. This method of holding title has all of the benefits of joint tenancy however also protects against some creditors. A home held as tenants by the entirety may only be reached by creditors of joint debts of husband and wife. In the case of non-joint debts, the property may not be partitioned, sold or encumbered without the permission of both spouses.
Tenancy in Common: The most basic form of title. In Illinois, if no manner of title is stated, co-ownership is presumed as tenants in common. It means the owners in common own an undivided fractional interest in the property. The owners own an unequal share but may use the entire property. The physical property is not divided. Tenants in common each hold separate ownership interests which can be sold, conveyed or transferred without the consent of the other owners. There is no right of survivorship. When one owner dies, that share of land is transferred by the owner’s will or by the intestacy statute and the owner’s heirs or legatees will become the new owners of that share.
Joint Tenancy: Basically joint tenants with right of survivorship. This ownership may be attained by satisfying the legal requirements of the four unities of ownership to include: time (all tenants must take title at the same time), title (all tenants must take title by the same document), interest (all tenants must have an equal interest), and possession (all tenants have an undivided possession right).
As in tenants in common, all owners have an undivided interest and can use the entire property. The difference is there is a unity of ownership. Upon death of one of the owners any remaining owners will take the rights of the deceased ownership, no new owners can take title. The property will be passed to the surviving owners. Property held in joint tenancy may be partitioned, sold, or encumbered without the consent of the other owners.
Tenancy by the Entirety: This is reserved only for married couples and provides extra protection to marital property. This must be the couple’s homestead. This method of holding title has all of the benefits of joint tenancy however also protects against some creditors. A home held as tenants by the entirety may only be reached by creditors of joint debts of husband and wife. In the case of non-joint debts, the property may not be partitioned, sold or encumbered without the permission of both spouses.