Updated: Jul 15
I have heard people, even my own family members, insist that you do not need a lawyer if you are simply buying or selling your home in Illinois. The reasoning is that these transactions are commonplace and that the bank, real estate agent, and title company provide sufficient protection for either the seller or buyer such that there is no need for the expense of an attorney. Indeed, often people will point out that some states (out west) don't even permit lawyers at closings, with the title company doing all the paperwork.
Now, when talking about Illinois, and when talking about a real estate closing on residential property, the reasoning is not incorrect, per se. Indeed, there is not any law in Illinois that requires you to use a lawyer at a real estate closing. And likewise, I am sure that if you ask around you will find plenty of people whose closings ran smoothly, and problem free (with or without an attorney). However, what if your closing isn't worry-free, how many people do you know that have had minor hiccups or even serious detours in their closing? Do you really want to take the risk that your home sale or purchase is going to be one of the "worst-case scenarios?" I have seen even better than "worst-case scenarios" derail a closing and cause anxiety and frustration in people, and even threaten the transaction in its entirety.
That is why you need a lawyer to represent you in Illinois for a real estate transaction. You already are paying for an expert home inspection, a real estate broker, permits, a survey fee, and a myriad of other fees. Most of these protect you in one form or another, so why would you balk at hiring an attorney to protect you even more and take care of things when something goes wrong? Typically, on average, on the buyer's side lawyers in Illinois charge anywhere from several hundred dollars to about $1000. Given that a home is one of the most important purchases/investments that a family makes, doesn't that warrant a minor charge to have peace of mind and security? It is when a hiccup occurs that you typically find out that those "looking out for you" in the process are doing so only because of the mutual interest that they have in you closing the deal. That is not the same as them being "on your side." The Bank is looking out for its own interests, not yours.
Real-Life Examples of "Closing Hiccups"
Here are just some of the scenarios I have encountered (and often resolved to protect my clients).
Survey and Encroachment Problems
Wrong Property description in the Mortgage/Deed
Wrong or Missing Documentation
Unreliable Title Companies
Liens and Encumbrances on Property
Any one of these will at the very least prevent or delay closing, and the consequences can be even more serious than that. Commercial property transactions have such issues more often. Having an attorney does not mean that these problems go away, but at least the attorney is capable of performing everything possible to salvage the deal and your rights. A lawyer can see the problems before too late and try to resolve them to save you time, money, and a whole lot of stress.
Benefits of An Attorney
One of the most important things to remember is that your attorney is the only one in the transaction who has your interests first and foremost. The attorney owes an individual duty to you, unlike others in the transaction (ie. lenders, appraisers, etc.). Realtors typically use a form contract that may not be the best for the specific circumstances (and may not have favorable terms that protect you in every conceivable occurrence).
You should never sign a legal document that you do not understand. The attorney will be able to explain complex legal-ease in the contracts in plain English. Plus, in Illinois, there is an "attorney review" period where attorneys can modify contracts (even after signing) to protect the interests of buyers and sellers. In case you need to cancel a contract (such as if denied for a loan or having second thoughts, or after discovering a flaw in the property) the lawyer can help you. Because such circumstances often arise, we know what to include in contracts before that happens to protect you if that happens.
Thereafter, your real estate attorney can help you review title documents and ensure that clear title to the property will be conveyed, help you evaluate mortgage financing options and explain the terms of your mortgage loan, help guide you at closing through the stack of documents that you will be asked to sign, and check to be sure that the conveyance documents have been properly prepared and actually convey good title to the property to you. If you are married, your real estate attorney can also help you evaluate the pros and cons of taking title as joint tenants or as tenants by the entirety, and can explain to you the consequences of the various options.
The most important element - what happens when a deal fails? Do you lose your dream home or the earnest money? Having a lawyer will minimize the chances of something like that.
Our law firm also handles real estate transactions. If you would like to cover all the bases in your purchase or sale of a home - feel free to contact us for a price quotation.