I know that many (if not most) real estate agents believe that “lawyers are deal breakers, not deal makers”.
My experience has been that those who believe in that mantra have either never dealt with a knowledgeable, experienced real estate attorney, or simply only care that a deal close, whether or not it gets done legally.
Having been called in numerous times at the last moment to try to save a deal that has gone horribly wrong, it often takes major changes to the contract between the buyer and seller (and by the time that I get called in, getting those two to try to work together is tougher than herding cats). Rather than have a deal collapse one day prior to settlement (usually because the lender or the title insurer has issues with the way that the deal is structured), try calling in a real estate attorney at the beginning. While I grimace when I get the phone call that starts “I know that I cannot . . .”, I am happy to try to come up with a method of making the deal work. Instead of tweaking a solution that we all know cannot be done, an experienced real estate attorney can look at the problem, and then (usually) come up with a viable solution.
I recently got a call from a realtor that started “I know that under the condominium documents my seller’s father cannot rent the unit for the winter season from the buyer, but the only way that the seller will sell is if his father can remain in the unit until March!” The condominium rules do not allow for rental of units until the owner has owned the unit for at least two years. Rather than trying to hide the sale from the condo board (as if that was even possible), and then hide the fact that the new owner was renting the unit, we were able to structure the deal as a holdover of the seller.
There will not be a lease, rather there will be a long post-closing holdover. There will not be regular monthly payments during the holdover period, rather, the entire amount to be paid will be credited to the buyer at closing (benefiting both the buyer, who will need to come up with less money at closing and the seller who will pay taxes on the sale based upon the reduction in their basis).
The condominium association is okay with this structure, since the unit was owned for the benefit of the father to be able to snowbird every year (the son lives in a house nearby, no one else used the unit other than the father each winter).
By coming to me at the beginning with the issue, we were able to come up with a solution that worked for everyone. Had they come to me after the contract was signed, with a lease agreement that would be turned down by the condominium board, we would probably have lost the deal, since the board would not want to “lose face” by agreeing to the solution above after having denied the lease.
Going to them with this solution up front saved everyone from spinning their wheels on a deal that would have been doomed from the start.
