Selling or buying a home or property is more complicated than ever. We receive a lot of
questions about the particulars of selling and buying real estate. Here, we share the top 10
questions and their answers.
In North Carolina, any agreement to buy or sell real estate must be in writing to be
enforceable. Standard “Offer to Purchase and Contract” forms approved by the North
Carolina Bar Association and the North Carolina Association of Realtors are the usual
and suggested forms to be used. These standard forms are detailed, but they help make
sure that the seller and the buyer cover their respective rights and responsibilities for the
sale/purchase. Many of the provisions in the standard forms are complicated, so you
should seek advice from your attorney to be sure that you fully understand the
You work out the contract and sign the papers. The buyer then employees a real estate
attorney to perform a title search and work with the buyer’s lender to close the loan. The
seller may wish to hire his/her own attorney or may consent to the buyer’s attorney
preparing the seller’s deed and other documents. The attorney(s), the lender and the
real estate agent coordinate the closing process and transactions, creating a simplified
experience for the seller and the buyer.
Your right as seller or buyer to terminate your agreement is set out in the contract itself.
The buyer may pay a “due diligence fee” with the initial contract and, if so, have an
absolute right to terminate the contract for a certain period. Most agreements limit the
damages to the earnest money. The seller would have to refund the earnest money if in
default and be subject to damages suffered by the buyer due to the seller’s default. Also
the buyer may sue to specific performance and force the seller to sell to the buyer.
If a loan is involved, the Deed of Trust usually restricts any change in ownership of the
property and could trigger the “due on sale clause” allowing the lender to require that the
loan be paid off immediately. You should consult with your attorney before making any
You must apply for a loan to refinance your mortgage under your name only. You must
consult with the lender and follow its requirements. One lender would have to consent to
release anyone from a mortgage which would be unusable.
To transfer ownership of property, there must be a property deed. These legal
documents will transfer the ownership to another party. The deed must be notarized and
recorded at your county’s Register of Deeds office and normally you should use an
attorney to prepare this important document.
You can do so, but there may be tax consequences. It is best to consult a CPA.
Title searches are used to inform the buyer of any liens or claims held against the
property. These searches should be done by an experienced attorney to find title
problems and any adverse claims.
North Carolina’s intestacy law determines who inherits property when an individual
passes away without a will. Whoever inherits the real estate takes it subject to the
existing mortgage and will have to make payments, sell the property, or allow the
property to be foreclosed upon.
The co-owners can agree to divide the property by hiring a surveyor to prepare a map to
be recorded showing the newly divided tracts of property. The co-owners would then
employ an attorney to prepare the individual deeds. If all the parties can’t agree to a
voluntary division then you need to file a “petition to partition” that will enable the clerk of
court to decide how to divide or sell the property. Real estate attorneys are here to help
guide you through these necessary arrangements.
It is always a good idea to get an opinion from a professional to ensure quality decisions
on real estate issues. Our attorneys here at Kelly & West are trained to handle these
situations. Don’t face these difficulties alone; let us protect you. Contact us today.
“Reggie Kelly is a fantastic attorney with fantastic paralegals. My wife and I have been using him and his firm since 1983 when we first purchased property in Harnett County 37 years ago. He offers excellent legal advice and guidance. He never gets in a hurry to get us out the door because of his next appointment. He always takes the time needed to check out all of the issues that might come up. Reggie Kelly is a proud American and he loves our country and he wants everyone to do well. Reggie Kelly is an even finer person than he is a fantastic attorney and we are very fortunate to also be able to call him and his wife Cheryl our friends. We give him a 10 STAR Review!”