Real Estate

Planning to buy, sell or build a home or refinance your mortgage? Take advantage of John's vast experience in closing real estate transactions.

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Plan for transfer of your assets through a will, trust or lifetime gifts and manage your financial/health care decisions with powers of attorney and a living will.

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Are you are looking for help in an area of law not listed here?  Contact John to see if he can refer you to a fellow lawyer with expertise in such area.

(click on a question below for a drop-down answer, then contact John if you want further information about your real estate law question)

Real Estate Law FAQs


1. What should be taken to a real estate closing?

• A photo identification such as a driver's license or other government-issued i.d., an official check for any funds required from you, and any other documents required by your lender.  If you are married, your spouse is usually required to attend the closing.  

2. What documents are signed at a real estate closing?

SELLERS:  If you are the seller in a purchase, you will typically sign the following documents (unless you've executed a proper power of attorney allowing someone else to sign on your behalf):

deed:  transfers ownership in property

lien affidavit:  certifies that there are no unpaid bills for certain types of labor and materials provided for the property

settlement statement (usually is a "HUD-1" form):  itemizes closing costs for the transaction and reiterates major terms of the loan

IRS 1099-S affidavit or certification:  certifies the seller's social security number and whether the transaction is exempt from IRS reporting

FIRPTA form:  certifies that the seller is not a foreigner subject to tax withholding

BORROWERS:  If you are a borrower in a sale or refinance, you will sign many of the following forms:

settlement statement:  itemizes closing costs for the transaction

promissory note:  is the promise to repay the loan

deed of trust:  allows the property to serve as collateral for the loan

federal truth-in-lending disclosure:  gives a relative interest rate modified to treat certain closing costs as prepaid interest

IRS Forms W-9 & 4506:  certifies the correctness of the borrower's social security number for IRS reporting of interest and to allow the lender to obtain a copy of the borrower's tax returns from the IRS 

lien affidavit:  certifies that there are no unpaid bills for certain types of labor and materials provided for the property

name affidavit:  certifies that the borrower is the same person when different name variations appear such as middle initial versus full middle name 

judgment affidavit:  certifies that the borrower is not the same person as someone with judgments who has the same or similar name to the borrower

owner-occupancy certification:  certifies whether the borrower will be occupying the property as a primary residence

loan application:  includes personal, work and financial information about the borrower as well as details about the loan

payment letter:  indicates the total initial monthly payment including escrow items

loan servicing agreement:  discloses that the lender may transfer the loan and sometimes indicates the name of the transferee

hazard/flood insurance forms informs the buyer that hazard, and if applicable, flood, insurance is required by the lender

document correction agreement:  states that the borrower will sign additional documents required to correct errors, if any, in the original closing documents

FICO disclosure:  shows the borrower's credit scores from the three major credit reporting bureaus

right to cancel:  in certain circumstances gives the borrower three days to cancel the refinance transaction

3. How does a "short sale" work?

A short sale occurs when real property is sold for less than the amount owed on the seller's mortgage(s).  It avoids the foreclosure process but requires consent of all of the seller's lenders, because the outstanding mortgages will not all be paid in full.  A short sale might not relieve the seller from personal liability for any deficiency resulting from the difference in the amount owed versus amount realized by the seller's lender.

4. Which different types of ownership are available for co-owners of real property in North Caroliina?

Multiple owners can own property in several different ways in which they each have a present right to possess the property. These include:

"tenancy in common": owners may own different percentages, but there is no right of survivorship; a deceased owner's property interest will pass through inheritance

"joint tenancy with right of survivorship": unlike a tenancy in common, a deceased owner's interest will pass by operation of law to the surviving owner(s), avoiding probate

"tenancy by the entirety": is like a joint tenancy with right of survivorship but can be held only by a married couple; it is typically immune from judgments docketed against only one spouse

Multiple owners can also own property such that not each owner is entitled to a present right to possess the property. In this situation, one or more own what is known as a "life estate" entitling them to possession of the property measured by one or more person's lifetimes, while the other owners own a "remainder" interest in the property entitling them to possession only upon the death of all persons whose lifetimes are used to measure the duration of the life estate.

5. What is the purpose of a property survey?

A property survey is performed by a surveyor licensed by the State of North Carolina whereby the surveyor physically inspects the property. Among other things, the surveyor takes measurements of property lines and notes the location of improvements on the property such as buildings, fences and utility easements. Then, in conjunction with reviewing public records at the Register of Deeds office, the surveyor will draw a map of the surveyed property. The map will typically show the computed acreage of the property as well as any encroachments.

Lenders rarely require a new survey whenever there is a new loan, but a purchaser would be prudent to pay a few hundred dollars for a residential property survey performed in advance of closing rather than find out years after the closing that there is a problem which could have been revealed by a survey. Also, a purchaser's title insurance will usually make exception for items that would have been revealed by a new survey if one is not done.

6. How does "title insurance" work?

Title insurance provides contractual indemnity against monetary loss resulting from certain defects to real property title caused by either matters extrinsic to the public records, such as a forged deed, or erroneous title examination. A title insurance policy can insure either the property owner or lender, or both. For a more detailed discussion of title insurance from the American Land Title Association, click here .

7. What types of restrictions can affect use of real property?

Even if property is owned by the highest quality of title (known as "fee simple" or "fee simple absolute"), one or more of the following can limit the owner's use of the property:

zoning laws: a local government can pass ordinances to divide the municipality into zones based on use such as business or residential, as well as impose rules such as building setback distances

restrictive covenants: landowners and developers can also voluntarily impose conditions on how property can be used

easements: these are typically granted in favor of utility providers to enable them to bring water, sewer, electricity, etc. to the property owner's building and can sometimes exist to provide access to an adjoining landowner

eminent domain (also called condemnation): this is the exercise by a government of its power to take private property for a public purpose

8. What is "title examination"?

A purchaser of property in North Carolina is charged with knowledge of any matters appearing in the public records such as those maintained by the Register of Deeds and Clerk of Superior Court for the county in which the property is situated. Thus, if the seller or one of the seller's predecessors subjected the property to a properly executed and recorded mortgage, that mortgage will continue to encumber the property after the purchaser receives the deed to the property unless the purchaser makes sure that enough funds are withheld from the sales proceeds to pay the mortgage in full.

Because of the price, a home purchase will typically be the most expensive asset someone will ever purchase. It is thus important to the purchaser, as well as the purchaser's lender, that title be examined by someone competent in real property law who can provide an accurate certificate of the state of title to the property. This is also required by the title insurance company if a policy of title insurance is to be obtained as part of the purchase transaction.

9. What is a "lien"?

If property is subject to a lien it means that someone who is owed money (known as the "lienholder") has the right to have that property sold and some or all of the proceeds paid to the lienholder. A lien can arise from, for example, execution of a mortgage, unpaid improvements (known as a "mechanic's" or "materialman's" lien) or unpaid taxes.

10. How does a deed work?

A deed is a document that transfers ownership in real property.

Like the Stevie Wonder song, a deed must be signed, sealed and delivered from someone legally competent known as the "grantor" to someone else known as the "grantee." The deed must also contain a legally sufficient description of the property to be conveyed. It is the method used to pass title between living persons; alternatively, title can be passed at death through a will or the through laws of inheritance instead of through a deed.

The best type of deed is the "general warranty deed" because the grantor guarantees good and unencumbered title to the property. This is usually the type of deed required by the real estate purchase contract.

A lesser type of deed is the "special warranty deed" in which the grantor guarantees that nothing has occurred during the grantor's time of ownership to impair title.

The least desirable type of deed is usually the "quitclaim" or "non-warranty deed" in which the grantor agrees to convey to the grantee whatever title the grantor might possess, if any, but makes no guarantee to the grantee.

Other types of deeds sometimes used to pass title include, for example, deeds conveyed by a sheriff, trustee or commissioner; these will often be special warranty deeds. The "deed of trust" commonly used in North Carolina, although a type of deed, is more of a security interest used to mortgage real property.

11. What is the role of a lawyer in a real estate closing?

Traditionally in North Carolina the closing attorney performs the following tasks:

►examines the "chain of title" as it exists in the Register of Deeds and Clerk of Superior Court records

►tries to obtain a copy of any previous title insurance policy for the property in order to obtain a lower reissue premium for a new title insurance policy

►prepares a preliminary opinion of title report to be submitted to the title insurance company so that a title insurance commitment can be issued

►determines whether property taxes are current and calculates a proration between seller and buyer if required

►verifies the existence of property insurance covering the property for fire, flood, and wind & hail damage if applicable

►verifies that the proper mortgagee clause is listed on all property insurance policies

►orders and reviews a property survey if applicable

►verifies the amounts of any applicable real estate brokerage commissions

►obtains invoices for any repairs and any inspections such as wood-destroying insects, house, radon

►obtains payoffs for all encumbrances attached to the property

►provides requested preliminary data and obtains the loan package from the lender, usually view email or courier

►reviews the loan package for accuracy and inserts any missing information such as legal description and trustee on the deed of trust

►prepares the HUD-1 settlement statement and submits it to all relevant parties for review and approval

►prepares lien, judgment, FIRPTA and 1099-S affidavits

►coordinates a date and time for closing with all relevant parties

►oversees execution and notarization of all closing documents

►collects and deposits all required closing funds in proper form

►updates title and records all applicable documents

►issues checks or wire transfers for all required disbursements

►returns applicable loan packages as directed by lenders

►makes copies for the attorney's file and for the client

►prepares a final title opinion and submits it to the title insurance company

IRS Circular 230 Notice: In accordance with IRS requirements, any information on this website that could be construed as federal tax advice is not written or intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, nor (ii) promoting, marketing or recommending to another party any transaction or matter addressed on this website.