Home Selling in Boston>Question Details

Nicole Gardn…, Home Buyer in Worcester County, MA

Who writes up the purchase and sales agreement? Our attorny or our realtor?

Asked by Nicole Gardner, Worcester County, MA Sun Aug 21, 2011

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17
Hi Nicole,

In Massachusetts, the Seller's lawyer drafts the P&S. Your lawyer would then review and send any changes. Your Realtor can review as a third set of eyes, but they do not draft any of the legal documents necessary for a real estate transaction. This may differ from state to state, but in MA, closing attorneys are necessary as they also draft the deed.

I always recommend that Buyer's look for lawyers with flat rates. This fee usually includes reviewing the offer, drafting and negotiating the P&S Agreement with Seller's counsel, tracking all relevant dates, preparing the deed and any other necessary closing instruments, reviewing the settlement statement and closing documents and attending the closing on your behalf or with you.

If you have any further questions, do not hesitate to give me a call.

Andrea McDonough
Bushari Group RE
234 Clarendon St. Boston MA
andrea@bushari.com
617-733-1238
1 vote Thank Flag Link Sun Aug 21, 2011
Laws are different in different states. Out of state Realtors need to be careful what they answer.

In Massachusetts Real Estate agents are not allowed to practice law. Although there is a basic purchase and sales contract that the seller's Realtor may prepare, it is always recommended to consult with a Real Estate attorney to review a Purchase and Sales contract.
1 vote Thank Flag Link Sun Aug 21, 2011
This question is still a relevant one. In my experience the answer is "it depends" - Yes, that is the answer to many real estate questions. In Boston it is usually the attorney who writes up the P&S but in the suburbs it is often the real estate agent (usually using a standardized form form their MLS).
0 votes Thank Flag Link Tue Jan 7, 2014
Either the selling agent or the sellers attorney, it depends. I would recommend having the sellers attorney do it as its a binding contract and should be reviewed by an attorney.
0 votes Thank Flag Link Mon Jul 8, 2013
The seller's lawyer prepares the Purchase and Sale, your attorney must review it, make changes if needed to ensure both the seller and the buyer are satisfied.

Mariana Galstian
My Boston Condo
http://www.mybostoncondo.com
0 votes Thank Flag Link Wed Jul 3, 2013
I’m putting an offer on a house and I have a “Purchase and Sale Agreement” from the realtor for review and sign. It’s generally recommended to have a lawyer review it.
My question is: If every time I put an offer on a property and it’s rejected – the lawyer fees can built up.
Do you have any suggestions?
0 votes Thank Flag Link Thu Jun 27, 2013
The Purchase and Sale Agreement is not entered into until after an offer has been accepted, so there is no need to review until after your offer has been accepted. There are standard "Form" Purchase and Sale Agreements that realtors will use typically put out by the Greater Boston Real Estate Board or Mass. Association of Realtors. Both of which will be edited and added to by both sellers attorney and buyers attorney. That is when a fee would be imposed by your attorney. Unless your attorney is going to review an offer before you submit, you should not be incurring any attorney fees until acceptance of an offer.
Flag Sun Sep 8, 2013
Lots of agents like to do so to keep the transaction moving. It's a mistake for a bunch of reasons #1 that is what you pay your attorney for and they are properly versed and insured for such work. Although us as agents or brokers see dozens or hundreds or contracts, it is still the proper domain of the attorney who will defend or enforce it.
#2 as a practical matter.. the boilerplate forms we use are more difficult for the attys to modify so creates issues of them retyping, whiting out or handwriting changes. Any good atty will have their own forms or addenda to make the changes easier and faster ( a.k.a. less costly to the client as well! ).
0 votes Thank Flag Link Tue Aug 23, 2011
Nicole,

What did your attorney and realtor say?

Neither would typically draw up the purchase and sales agreement. It is typically written up as a draft by the seller agent or the sellers attorney, given to the buyer and the buyers attorney for their review and clauses they would like to see to protect you.
0 votes Thank Flag Link Tue Aug 23, 2011
Hello Nicole,

This is a common question I get from buyers and sellers. I always recommend that an attorney draft the P&S. This is a complex legal document that spells out the entire transaction in detail. Once it's drafted, the sellers and buyers attorney will negotiate back and forth until the language is satisfactory to all parties.

Best of luck with your transaction!

Jeff
0 votes Thank Flag Link Tue Aug 23, 2011
As an agent there is never a time I would produce a purchase and sale agreement. This is a legal document that needs to be the core of the purchase of the property including all the special conditions and agreements that make the offer. I would ALWAYS have an attorney draft this document. It is as simple as that.

Louis is correct there is no law that makes you use an attorney but why would you use anyone else to draft a legal document ? Honestly if you opt not to use one you might be your own dentist.
0 votes Thank Flag Link Sun Aug 21, 2011
Andrea,

In MA there is no law that dictates who should write up a purchase and sales agreement and there is no law that say's a seller or buyer needs an attorney, or that you need an attorney to write up a deed.

In fact many transactions the sellers agent draws a p&s, the buyers attorney (I do recommend you get one) reviews it and makes addendums that they would like to have in the agreement. You or your attorney can review them and agree with them or discuss them and have them changed or removed. Most are boiler plate, ie: house to delivered in broom clean condition, access at reasonable times, etc.

As to the deed, I've seen sellers, draft them, sellers attorney's draft them, buyers attorney's draft them and the closing attorney for the bank draft them. The most important thing is that they are acceptable to the bank and that you can get a good clear and insurable title to the property.
0 votes Thank Flag Link Sun Aug 21, 2011
Realtors in MA have a Purchase & Sales Agreement that is "stamped" as coming from the Greater Boston Association of Realtors or essentially the same document is produced thru some common forms companies such as TrueForms.

There may be differences in these documents than from the customary practices that are found in Worcester County, where you are from.

This is why most of the time local Realtors choose to just let the Seller's Attorney produce their own and negotiate terms with the Buyer's Attorney. If you are the Seller, you dont have to have an attorney represent you, but most Realtors would advise it.

A Realtor who produces a P&S Agreement would really not be able to answer your questions about terms and conditions, with the danger of acting like an attorney and opening a can of worms regarding ethics and liability. In the end, as a Buyer, your attorney should be drafting and advising you at Purchase & Sale.
Web Reference: http://www.MAhome.com
0 votes Thank Flag Link Sun Aug 21, 2011
Nicole,

In Berkshire County, the standard practice is for a realtor (buyer's agent, dual agent, or seller's agent) to draw up the Purchase and Sales Agreement. There is a standard P&S template that allows realtors to fill in information. My understanding is this is different than other parts of the state. I do recommend any realtor drawing up the P&S allow for an attorney review period.

Good luck.

Tom Lynch
Associate Broker, Massachusetts, New York, Connecticut
Berkshire Property Agents
Great Barrington, Massachusetts 01230
0 votes Thank Flag Link Sun Aug 21, 2011
Hi Nicole,

Massachusetts is one of two states in the country that works on a 2 document basis. The offer (document 1) is customarily prepared by your buyer's agent. The Purchase & Sale Agreement (document 2) is customarily drafted by the seller's attorney and reviewed by your attorney to ensure you are appropriately protected and all your requests are incorporated in the contract.

Ina H. Cohen • REALTOR CRS, CBR
Keller Williams – Boston Metro • 607 Boylston Street, 5th floor • Boston, MA 02116
ina@ask-ina.com
fax: 617-507-5948
mobile: 617-645-1909
0 votes Thank Flag Link Sun Aug 21, 2011
Hi Nicole,
Each Attorney is different. Some like to write up the P&S and distribute the draft to the buyers Attorney. While others ask the sellers realtor to draw up the draft and the Attorney makes changes and or additions and distributes. There is no hard rule.
0 votes Thank Flag Link Sun Aug 21, 2011
If you have a Realtor, they would write up the purchase agreement. You would then have your attorney review the agreement, but that is optional.
0 votes Thank Flag Link Sun Aug 21, 2011
Your Realtor should write the offer to purchase (if you are the buyer). If you are the seller, the buyer's Realtor will write the offer to purchase.
0 votes Thank Flag Link Sun Aug 21, 2011
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