As seller, you will be contractually required to deliver ‘marketable title’ to your buyer at closing.

Once you have hired us after your initial consultation, we will obtain a title search with a full underwriting review of the current status of title to your real estate.

In most real estate sales in Florida, no title search or examination is conducted until after a contract is made between a buyer and seller.

We think this is backwards and that the better practice is to conduct an examination of title prior to being locked into the sale contract and being under the pressure of contractual timeline and deadlines.

If you purchased your property, you most likely obtained marketable title from your seller, and were insured under an owner’s policy of title insurance which was issued by the title company that handled your purchase.

Assuming your purchase closing was handled properly and you in fact received good marketable title your seller at the time of your purchase closing, that status of marketability of title was as of that point in time of purchase only, and does not account for any potential changes or life events since the time of purchase.

We often find many anomalies which should have been corrected prior to the last sale (your purchase), and are usually able to rely on your title insurance policy from the time of purchase, but this assumes that you have a copy of your title insurance policy or can obtain it, and further, that you haven’t made any changes to the status of title which might have voided the coverage under your policy.

Marketable title has been described as title that is free from defects, claims, and litigation, and that which a reasonable (informed) buyer would accept without hesitation.

After reviewing the current status of title, we find that most of our clients indeed have marketable title to their property, but often enough to make a pre-sale title search worthwhile, we find anomalies which must be cured prior to closing so that clear and marketable title can be provided to the buyer at closing, as will be required under the contract with the buyer.

If you inherited your property, there is all the more reason to have a pre-marketing examination of title conducted.

In addition to all of the above reasons which might have afflicted the title of your deceased benefactor (whether with or without his or her knowledge), obtaining clear and marketable title through a will, estate, trust or combination thereof (or other transfer on death process such as a life estate deed) in Florida can be fraught with many potential perils.

For example, Florida law restricts certain types of transfers on death of homestead property by married persons and also entitles the surviving spouse to elective rights in the homestead property regardless of (and indeed in spite of) what the will or trust of the decedent clearly states on its face.

Depending on how your deceased parent or spouse held title to the homestead property, the provisions of the will or trust may be invalid, and in any event will most likely require probable administration in Florida court before the property can be sold.

We do not handle probate (and thus have no agenda in convincing you to undertake the process where it is not required), but we also benefit from relationships with trustworthy, competent third party attorneys for referral when these processes are required and their services are unavoidably needed so that the process is completed as economically and quickly as possible. We are aware from previous experience of when certain expedited procedures can be relied upon to mitigate the loss of time involved with the probate process as it relates to real estate sales.

If you aren’t using a broker, you obviously have a heightened need for alternative professional assistance to develop a plan to market the property for sale using your own efforts.

We can provide insight into available options, strategies, and resources and that past clients found helpful in successfully selling their property without a broker.

Additionally, consider that many owners who start the process of selling their property without hiring a broker to list the property publicly on the MLS or otherwise later decide (perhaps after being approached by a buyer’s agent with an offer from the buyers the agent is working with) that it is in their best interests to work with and pay a commission to a broker who is representing a particular buyer. In this common situation, a seller who may have started with a strong conviction to avoid paying commissions wears down after a while if the property doesn’t sell right away and the seller is self-represented (read: unrepresented or ‘without representation’) but the buyer is represented by a licensed, experienced agent or broker, providing the buyer with an unfair advantage in negotiating the purchase and sale contract. If you find yourself in this situation, we can assist in reviewing the offer prepared by the buyer’s agent and in preparing a counter offer to include terms that may be necessary for your protection.

At some point in the process you’re going to have someone who is seriously interested in your property who will want to make an offer. We assist in reviewing any offers from buyers, suggesting terms to be included in any counter offer, and in drafting contracts.

We have access to and use the same standard contract forms as ‘Florida Realtors’. The most commonly used form in residential sales in Florida is “As Is” contract form which is a product of joint cooperation between Florida Realtors and The Florida Bar.

We can step in and review any offer you have received even if you had not already hired us when you started to market your property and can also help if you already have a contract and need assistance in fulfilling your obligations and/or the closing, but . . .

We can do our best work for you in the contract formation process so that we can help you avoid committing yourself to any unfavorable contract terms.

The best time to hire us is before you have signed any contract offer, but if you’re already in contract, we can still help you optimize your position.

When selling real estate in Florida, your biggest risk is getting sued after closing by a buyer for failing to properly disclose known defects, or worse, to include misrepresentation or fraud.

If someone is going to hire an attorney to sue you, they will allege all three (i.e. failure to disclose, misrepresentation, and fraud); it will be filed in open court and your name will be tied to it in a search of court records until resolved).

This is especially true in the sale of residential property, which carries an affirmative duty to disclose any known defects which materially affect the value of the property but are not readily observable by the buyer.

The terms used to describe the duties in disclosure are purposefully somewhat vague because the Florida Supreme Court court in setting the precedent could not obviously foresee every circumstance of every future sale. Thus, the interpretation and application of the duty of law in any given case will be highly dependent on the particular property-specific facts and circumstances by a judge and jury of your ‘peers’ (think about 6 random people in the checkout line at Walmart deciding your case).

The bottom line as a seller is this: the more valuable the property you are selling, the more likely the buyer can afford to sue you if the buyer actually feels aggrieved and the more the buyer needs to pay just to maintain your old property. Your buyer may feel remorse or “sour grapes” or other regrets about the deal and try to “shake you down” after closing for a “nuisance value settlement” to pay for upgrades and maintenance to your old house that the buyer doesn’t want to pay for themselves.

The best (and only) protection against the specter of being sued after closing for failure to disclose, misrepresentation, and/or fraud is by properly (and completely) disclosing what you actually know about the property (no more and no less) in writing to the buyer prior to contract (or more likely during the inspection contingency period).

No attorney can guarantee that you won’t be the subject of a frivolous lawsuit for these claims, but we can help you be as prepared as possible for one if it’s your turn in the ‘lottery of life’ to be victimized by a sue-happy buyer who has been made promises by an attorney with his face on a highway billboard, but we can help you (rightly) feel as securely as possible in feeling that when you have closed on the sale of the property, you have done everything reasonable to prevent a lawsuit for failure to disclose, misrepresentation, and/or fraud, and that the deal is actually CLOSED and you’re very unlikely to be the target of a frivolous lawsuit a year or two after closing (because there is no incentive for anyone to sue you because they as buyer know you have the documented proof that you properly disclosed everything as required by law).

We also believe the disclosure requirements of Florida law are simply ‘right and just’ and conducive to good honest business dealings, and we will not assist anyone in shirking from meeting or avoiding their responsibilities in the sale of their real estate, but we will guide you in fulfilling your duties under Florida law.

As seller it will be your responsibility to deliver certain key documents including a warranty deed, seller’s affidavits affirming your ownership, authority, and other facts including whether you are a foreign investor subject to withholding. For closings in which our office is the closing agent facilitating the closing, we will prepare the necessary documents as part of our standard services. If another closing agent is handling your closing, depending on the terms of your contract and local customs and practices regarding responsibility for selecting the closing agent, the title company may or may not be responsible for preparing these documents on your behalf, or you might need to hire independent counsel to provide (or as is often the case it may be that we can prepare the same closing documents and represent you as your attorney all at a lower cost to you than what the closing agent handling the closing is asking you to pay). For example, in Miami-Dade, Broward, Sarasota and Lee Counties, and some other Florida counties, the Buyer customarily chooses the title company or attorney which will be the closing agent for the contract, and the buyer is customarily responsible for paying for their own title insurance policy, but the seller is required to deliver the deed and other documents. Some title companies and attorneys charge more than others and often we can represent you and prepare the documents all for less than the local closing agent is asking you to pay for these services. In most counties, the seller customarily selects the closing agent and pays for the owner’s policy of title insurance, and thus the closing agent includes the preparation of closing documents as part of its standard package of services to sellers.

For the closings for which we are closing agent, we handle all required tax information reporting to the Internal Revenue Service.