The Listing Agreement:

This is a contract between you and the listing (Selling) agent whereby you are agreeing to compensate the Realtors for the services they will provide in offering your house for sale and procuring a buyer. This contract also contains a description of what you want to sell, e.g. the property located at 123 Elm Street, Westbrook, and those items of personalty that are sold along with the house such as the range, washer, dryer, AC system, curtains and drapes . It should also specify any items which you do not intend to sell with the house (you do not have to include furnishings, clothing, lawn equipment, vehicles, etc.). In the end, the Realtor must have a clear understanding as to what he or she is to be selling and what is not included in the sale. This is particularly important for showings where the Realtor will undoubtably be asked by prospective buyers whether the small lawnmower shed in the back will stay or be removed prior to sale.

Purchase Contract:

In Middlesex County, it is the general custom for the Realtors to prepare the contract using the Middlesex Shoreline Association of Realtors, Inc. Purchase & Sale Agreement. This is generally prepared by the Buyer’s agent. Some offices however have their own contracts. Read them carefully. Sellers will often receive a contract from the Buyer and it will generally give you 24 to 72 hours for a responce. Now is a good time to contact your lawyer to have him or her review it with you. The contract should include and exclude those items listed in your listing agreement unless you have changed your mind about excluding the riding lawnmower. Here being specific about what is being sold and what is not included is very important.

You will also find that the contract is likely to contain such conditions as the Buyer will have a right to inspect the property and if he or she is unhappy with the results the Buyer can either terminate the contract or request that the contract by amended by an addendum requiring that the offending conditions be addressed either by being repaired or by having some sort of monetary credit to the Buyer at closing. You, the Seller, are not obligated to make a concession although you may risk losing that prospective Buyer. If it is your intention that the place be sold “as is” and that you will not entertain any requests for modification or adjustment, let your Realtor know prior to signing the contract. This will undoubtably influence a number of prospective purchasers and may scare a few off. Remember, making a deal often requires some flexibility.

Another common condition is a mortgage contingency. Here the Buyer agrees to buy the house only if a bank will lend him or her the money. A certain period of time is set out in the agreement in which the Buyer must obtain a commitment from a bank. If the Buyer does not get a mortgage commitment by the date stated in the Agreement and properly notifies you our your attorney, the Buyer may terminate the Agreement and the deposit must be returned. There are various rules with regard to the Buyer having to use diligent efforts to obtain the mortgage. Also, it is not uncommon for the Buyer’s broker or attorney to have to ask for a short extension to the commitment deadline. The option to continue the contract then becomes yours. Also be aware that nearly all mortgage commitments are contingent. They are contingent upon small things being done by the Buyer such as the Buyer providing copies of tax returns, pay stubs, or proof that he or she is still employed. Generally these are all things within the control of the Buyer.

The next contingency is that you will provide clear or marketable title to the property. You must have the power to sell it free and clear of mortgages, UCC filings, attachments, judgment liens, real estate tax obligations or succession tax liens. The proceeds from the sale may be used to discharge those items if you are unable to have releases at time of closing. Your attorney will assit in obtianing the necessary releases.

Sometimes the Buyer will insert a “Hubbard Clause” which says that the Buyer is only obligated to buy your house on the condition that the Buyer can first sell his or her home. You are not obligated to accept this or any other condition, but at times it may be the fastest way of completing the sale.

Finally, you have a chance to insert, prior to your signing the contract, any contingencies you may require. Some such contingencies might be that you will not close until school ends in the Spring so that your child might remain in his or her class, that you not close until you, as executor, receive probate court approval, or until you find a new home to purchase.


Transactions can be structured in many different ways. The above contract is the most common or conventional way. There is sometimes used a rental with an option to purchase whereby some of the rent may be applied to the purchase price. Another option is to have you, the Seller, take back a first or second mortgage. If the property is investment property, you may wish to look into the tax advantages of a like-kind exchange.

The Lawyer:

Generally it is a good idea to contact your lawyer early on in the process. Have him review the contract. If you feel more comfortable, you can have him review the listing agreement as well. The lawyer is there to protect your interests and to assist in making the deal happen. It is for this reason that I suggest you use a well experienced Real Estate Attorney, one who has considerable experience with real estate matters. I suggest this for a number of reasons. First, it is not unusual for there to be found title issues which need resolving prior to closing. These can often be dealt with quickly by one who has done this before. The second reason is that as a matter of skill, knowledge and temperament a real estate attorney may be better able to hold a deal together without creating a combative situation. A real estate attorney works to draw the parties away from litigation and toward the amicable resolution of disputes.

The lawyer will prepare the deed, and conveyance tax statements, arrange for the payoff and release of your mortgages, calculate and make closing adjustments for taxes, oil, rents, and common fees or association fees, and schedule the closing. He will also assist in resolving title problems, but depending upon the nature of the problem there maybe additional fees for this. There are often times where it is difficult or impossible for the Seller to attend the closing. In these instances, the lawyer can prepare documents ahead of time for your signature or can prepare a Power of Attorney to allow someone else to sign closing documents on your behalf.

From time to time, and particularly with transfers within a family, the lawyer will be asked to prepare a mortgage and note if the Seller is willing to act as the bank for the Buyer.

Your lawyer should also prepare a settlement statement for you which itemizes all of the costs and credits having to do with your sale. Preferably this will be done in a clear manner so that you and your accountant will understand where every penny went.

The Seller’s Obligation:

The Seller must provide the lawyer the following information:

  • List of mortgage holders with the account numbers and a phone number for each lender.
  • Your social security number(s).
  • The address to which you will be moving.
  • A copy of the contract.
  • The name of your Realtor.
  • Phone numbers at which you can be reached so that you can be kept abreast of what is happening.

Your Realtor:

Your Realtor is not a lawyer. They do a wonderful job of marketing, finding buyers, assisting in scheduling inspections and coordinating moves but do not insist upon legal advice from them. You have a lawyer. Use him.

Our Agreement With You, the Seller:

When representing the Seller in a residential transaction we typically render the following services:

  • If you have not entered into a binding contract before retaining us, we will advise you as to proposed terms and provisions for the contract and help you negotiate the contract. If you have already entered into a binding contract prior to contacting us, we will advise you as to the terms of your contract and the local customs that affect residential transfers. If you have not already, please instruct your realtor to provide us with a copy of the contract as soon as possible.
  • We will contact the buyer’s attorney to advise him or her of our representation of you in this matter. We will schedule the closing and advise you of the same. Please do not schedule any movers until a firm closing date has been set. The closing date in the contract is a target date and is not a firm closing date until all parties agree to the scheduling of same. If there are any dates on which you will not be available for the closing or you do not intend to attend the closing, please let us know as soon as possible.
  • We will request a payoff figure for any mortgages or liens on the property. Kindly advise us of any mortgages, home equity lines of credit or liens on the property. Be sure to provide the lender or creditor’s name, telephone number and any loan or account numbers. When the buyer’s attorney has completed the title examination, we will discuss the results to ensure that there are no other liens or encumbrances which must be released prior to the closing. Frequently lenders and creditors do not issue a release until payment in full has been made. If that is the case, we will prepare a letter of indemnification for your signature. The indemnification enables the closing to take place. Under certain circumstances there are civil penalties associated with the lender or creditor’s failure to provide such a release in a timely manner. An action to recover these penalties on your behalf is outside the scope of the closing services defined in this letter. If it becomes necessary to seek such penalties from the lender or creditor for failure to provide the release in a timely manner, we will enter into a separate fee arrangement with you.
  • We will prepare the closing statement, calculating the appropriate adjustments and expenses of sale. Sellers expenses at the closing include state and local conveyances taxes, which are set by the state and based on the sales price. Realtors commissions are separate expenses paid at closing and will be reflected on our closing statement. We will confirm the adjustments and expenses with the buyer’s attorney and review it with you at the closing.
  • We will prepare the deed conveying title for your signature as well as all appropriate tax forms. If you will not be attending the closing, we will prepare the documents in advance for your signature and request that you execute a power of attorney for real estate purposes authorizing Attorney Tighe to execute any additional documentation at the closing. We will provide you with copies of all pertinent closing documents at the time of closing.
  • We will represent you at the closing, issue our firm’s trustee checks in payment of the sale expenses and payoffs. After payment of all sale expenses and payoffs, we will issue our trustee check payable to you for the net proceeds of sale. We will forward the appropriate payoff funds to lenders or creditors via overnight delivery. This usually saves you several days of interest. The cost of the overnight delivery service will be reflected on our closing statement as an expense to you. If you require any different arrangements, such as multiple checks, wire transfers, certified funds or bank teller’s checks, it is important that you let us know in advance of the closing so we can make the appropriate arrangements. Any bank costs or charges associated with these alternative arrangements will be deducted from the net sale proceeds. There will be a release tracking fee, payable to an outside vendor, for each lien release required to be filed on the land records.

Our fee for the closing services will be payaboe at time of closing. If for some reason you do not close on the home, you will be required to pay us all of the expenses incurred on your behalf plus a reasonable fee for services that this firm has rendered on your behalf.

The services described above and fees quoted relate to a usual and customary sale transaction. If extended and contentious negotiations develop and additional documentation results, we will be entitled to additional fees. You will be advised of those additional fees at the time when the services are rendered. Our services do not include suits or claims by or against you or your agents; negotiation or preparation of documentation relating to the use and occupancy of the property; or the resolution of any claimed defects relating to the physical condition of the property, the status of title, the survey, or compliance with wetlands, zoning, building or housing regulations. If necessary or appropriate, these legal services will be billed at our hourly rate, or if possible, at paralegal rates, which are substantially lower.