Real Estate Attorneys in West Springfield, MA

Massachusetts handles real estate closings differently from most of the country. An attorney has to be substantively involved, which raises a question worth answering early: whose attorney? Attorney Tanya K. Moriarty handles residential real estate matters for buyers and sellers across Hampden County. Sclafani & Moriarty has served clients in Western Massachusetts for over 25 years, from our office at 776 Westfield Street in West Springfield.

The initial consultation is free and takes place in our office. Call 413-732-8356.

Do I Need a Lawyer to Buy or Sell a Home in Massachusetts?

An attorney must be substantively involved in every Massachusetts closing, and that attorney acts on behalf of the mortgage lender. A buyer or seller who wants someone representing their own interests hires separate counsel, which is a different role from the one the closing attorney fills.

Massachusetts is what the industry calls an attorney state. In 2011 the Supreme Judicial Court decided Real Estate Bar Association v. National Real Estate Information Services, 459 Mass. 512, holding that closing a real estate transaction requires not only the presence but the substantive participation of an attorney.

The court went further than attendance. A closing attorney has to play a meaningful role in the transaction the closing completes. Appearing to hand over documents the attorney has never seen and witness signatures does not satisfy the requirement. Examining and certifying title, ensuring the deed validly conveys, and holding and disbursing funds are all the practice of law in Massachusetts.

One point in the decision is worth being precise about. The required attorney acts on behalf of the mortgage lender. In many transactions that same attorney also prepares the paperwork on the buyer’s side, and buyers frequently assume that person is their lawyer. Their duties run to the lender.

A seller is not required by law to retain counsel, and a buyer paying cash has no lender’s attorney in the transaction at all. Whether you want your own attorney is a separate question from whether the closing requires one.

Is an Offer to Purchase a Binding Contract?

It can be. Massachusetts courts have enforced signed offers to purchase as binding contracts where they contained all the material terms and the parties intended to be bound, even though a purchase and sale agreement was contemplated afterward. Whether a particular offer binds depends on how it is written.

Buyers and sellers often treat the offer as a preliminary step and the purchase and sale agreement as the real contract. Massachusetts law does not necessarily agree.

In McCarthy v. Tobin, 429 Mass. 84 (1999), the Supreme Judicial Court enforced a signed offer against a seller who accepted it and then accepted a second offer days later. The offer contained the material terms and recited that it was subject to a purchase and sale agreement. The court treated the later agreement as a polished memorandum of a contract that already existed.

Material terms in this context generally include the description of the property, the price, deposit requirements, title requirements, and the time and place for closing. Contingencies written into riders can be material as well.

The controlling question is what the parties intended, which means the outcome turns on the language of the document. Massachusetts appellate courts have also found offers not to be binding where the wording pointed the other way.

The practical consequence runs the same direction either way. An offer is worth reviewing before it is signed rather than after.

What Does the Purchase and Sale Agreement Do?

The purchase and sale agreement sets out the full terms of the transaction: price, deposit, closing date, what conveys with the property, title standards, and the contingencies that allow a party to withdraw. It is commonly signed within one to two weeks of an accepted offer.

The standard form is a starting point rather than a finished document. Most of the negotiation happens in the rider.

• Contingencies. A mortgage contingency allows a buyer to recover the deposit if financing is denied by a stated date. An inspection contingency does the same where an inspection reveals problems. The deadlines in both are enforced.
• Title standards. What the seller must deliver, and what happens if the title examination turns up a defect.
• The deposit. Usually increased at the purchase and sale stage, held in escrow, and at risk if a buyer walks away outside a contingency.
• What conveys. Appliances, fixtures, and window treatments. Disputes over these are common and avoidable.
• Extensions. What happens when a lender is not ready on the scheduled closing date.

We review and negotiate these terms before signing. Where a client comes to us earlier in the process, we review the offer as well.

What Happens During the Title Examination?

A title examiner traces the chain of ownership and searches for mortgages, liens, easements, and other encumbrances. Problems found early are usually fixable. Massachusetts also maintains two separate systems of land records, and which one a property sits in changes the process.

The examination establishes that the seller can convey what the buyer is paying for, and that the lender’s mortgage will hold the position it expects.

Common findings include an old mortgage that was paid but never discharged, a lien from a contractor or a municipality, an easement nobody mentioned, a gap in the chain of title, or a boundary description that does not match what is on the ground.

Recorded land and registered land. Most Massachusetts property is recorded land, indexed at the Hampden County Registry of Deeds. Some is registered land, held under the Land Court system with a Certificate of Title, and it follows different rules. Registered land documents must reference the certificate number, the Land Court declines some corrective filings the recorded side accepts, and property sitting in both systems has to go through the Land Court first. Identifying this at the start of a transaction rather than the week of closing is the difference between a routine filing and a delayed one.

Title insurance. The lender requires a policy protecting its own interest in the property. An owner’s policy covering the buyer is a separate purchase.

What Does a Massachusetts Seller Have to Provide?

A seller must deliver a certificate of compliance from the local fire department confirming that smoke and carbon monoxide alarms meet state requirements. Properties on private septic must satisfy Title 5. Municipal charges and, for condominiums, association charges are confirmed and adjusted at closing.

Smoke and carbon monoxide certificate. Under Chapter 148, Section 26F, a seller must have approved smoke alarms on the sale or transfer of a residence. What is required depends on when the home was built: residences built or modified before January 1, 1975 fall under the statute directly, and for later construction the date of the building permit governs. Section 26F½ requires the local fire department to inspect any residence being sold or transferred for carbon monoxide alarm compliance, which has been required since March 31, 2006, in residences with fossil-fuel burning equipment or an attached garage.

The fire department issues a Certificate of Compliance after a successful inspection, and both inspections can usually be done in a single visit. The Commonwealth publishes a guide for sellers and a page on preparing for the inspection. Without the certificate, the closing does not go forward, and fire department scheduling is a frequent reason a closing date slips.

Septic systems. A property served by a private septic system must satisfy Massachusetts Title 5 requirements before transfer. Inspections take time and repairs take longer, which makes this an early item rather than a late one.

Municipal and association charges. Water, sewer, and tax accounts are confirmed and adjusted between the parties at closing. For a condominium, the closing package includes confirmation from the association that common charges are current.

What Happens at the Closing?

At the closing, the seller signs the deed, the buyer signs the loan documents, funds are disbursed under the good funds law, and the deed and mortgage are recorded at the Hampden County Registry of Deeds. Ownership transfers on recording rather than on signature.

The closing itself is usually the shortest part of the transaction.

The seller signs the deed and delivers the certificate of compliance along with any other required documents. The buyer signs the note, the mortgage, and the closing disclosure. Funds move under the good funds law, which governs when money may be disbursed. The deed and mortgage are then recorded at the Hampden County Registry of Deeds, which maintains a full-service office in Springfield and a satellite office at Westfield City Hall.

Massachusetts charges a deed excise tax on the transfer, customarily paid by the seller, along with recording fees for the deed, the mortgage, and any discharges of prior encumbrances.

Recording is what completes the transfer. Until the deed is on record, a buyer’s ownership is not protected against later claims.

Should I Record a Declaration of Homestead?

A declaration of homestead protects equity in a principal residence from most unsecured creditors. Massachusetts provides an automatic exemption with no filing at all, and recording a written declaration at the registry of deeds increases that protection substantially. A closing is a convenient time to record one.

Every owner of a principal residence in Massachusetts holds an automatic homestead exemption without filing anything. Recording a written declaration raises the protected amount considerably.

Recording is inexpensive and takes effect immediately, which makes a closing a natural moment to do it. We prepare and record the declaration as part of the transaction where a client wants one.

Two limits are worth stating. A homestead protects against unsecured creditors; it does not stop a mortgage lender from foreclosing if payments stop. And the protected amounts have been revised more than once in recent years, so figures published in older articles are frequently out of date. We confirm the current amounts against the statute.

What Does a Real Estate Attorney Cost?

The initial consultation at Sclafani & Moriarty is free and takes place in our office. We quote a fee once we know what the transaction involves. Recording fees, the deed excise tax, title insurance premiums, and inspection costs are separate from attorney’s fees.

Residential transactions are more predictable than most legal work, and we quote accordingly.

A straightforward purchase or sale carries a quoted fee set at the outset. Transactions that require clearing a title defect, resolving a Land Court issue, negotiating around an inspection, or coordinating with an estate or a divorce take additional work, and we say so before it starts rather than afterward.

Third-party costs — recording fees, the excise tax, title insurance, and municipal charges — are set by others and appear on the closing disclosure. We go through the figures with you before the closing date.

Contact a West Springfield Real Estate Attorney

The best time to call is before an offer is signed. The terms that cause problems later are almost always set in the first few days.

Sclafani & Moriarty
776 Westfield Street
West Springfield, MA 01089
413-732-8356

Attorney Tanya K. Moriarty represents buyers and sellers throughout Hampden County, including Springfield, Chicopee, Holyoke, Agawam, Westfield, Longmeadow, and Ludlow. The initial consultation is free. Call 413-732-8356 or use the contact form.

Frequently Asked Questions

Who chooses the closing attorney?

The lender does, because the closing attorney acts on the lender’s behalf. Buyers sometimes have input, and in a cash transaction there is no lender attorney at all. Retaining your own attorney is a separate decision, and it does not replace or duplicate the closing attorney’s role.

Can I back out after the home inspection?

That depends on what the inspection contingency says and whether the deadline has passed. A properly drafted contingency lets a buyer withdraw and recover the deposit within a stated window. Once the window closes, walking away can put the deposit at risk. The dates matter as much as the findings.

Do I need an owner’s title insurance policy if the lender already has one?

The lender’s policy protects the lender’s interest, not yours. An owner’s policy is optional and covers the buyer against title defects that survive the examination — an undisclosed heir, a forged instrument, an error in the records. It is a one-time premium paid at closing.

How long does it take from accepted offer to closing?

Financed purchases commonly run somewhere between one and two months, though the range is wide. The purchase and sale agreement is typically signed within a week or two of the accepted offer, and the remaining time covers the appraisal, underwriting, and the title examination. Cash transactions move faster.

What happens if the smoke certificate is not ready on closing day?

The closing generally cannot proceed without it. Fire departments schedule these inspections on their own calendars, and in busy periods the wait can run past a closing date. Scheduling the inspection well ahead of the closing avoids one of the more common last-minute delays.

This content is provided for informational purposes only and is not legal advice. Laws and statutes are revised and updated periodically, and the information here may not reflect the most current version of the law. You are strongly advised to speak with an attorney about the specifics of your situation.