Real Estate Law: Buying or Selling a Home and When You Need a Lawyer

A home purchase is usually the largest contract a person ever signs, and in most of the country it’s done without a lawyer. Agents fill in a state-approved form contract, a title or escrow company runs the closing, and the lender’s paperwork follows federal timing rules. That system works well for a routine sale. It works badly when something in the contract, the title or the property line isn’t routine, and by then the deadlines are often already running.

This guide covers the legal side of buying and selling a home: where lawyers are required, how contingencies protect you, what changed with agent commissions in 2024, what sellers have to disclose, how title and closing work, and how boundary and easement fights get resolved.

Closing Disclosure3 business daysBefore closing on a mortgage

Buyer agreement with an agentBefore touringRequired for MLS participants since August 2024

Lead paint inspection window10 daysHomes built before 1978; can be waived

CommissionsNegotiableNo longer offered through the MLS

When you need a real estate attorney

In a few states the closing itself is legal work. Georgia’s Supreme Court has repeatedly held that it’s the unauthorized practice of law for anyone other than a Georgia-licensed lawyer to close a real estate transaction or to prepare or facilitate the signing of deeds. South Carolina’s Supreme Court has long required that real estate and mortgage closings take place under a lawyer’s supervision, along with the title search and the recording of documents. In New York and Massachusetts, lawyers are a standard part of residential deals by custom, and buyers and sellers there routinely hire their own.

Everywhere else, hiring a lawyer is a choice. It’s usually worth it when:

you’re buying or selling without an agent, so nobody else is reading the contract with you
the property comes from an estate, a divorce or a foreclosure
the title report shows liens, gaps, or easements you don’t understand
the other side wants to change the standard form contract, or there’s a seller-financing or rent-back arrangement
you’re signing a builder’s contract for new construction, which is usually the builder’s own form
a deal is falling apart and someone is claiming the earnest money

If you inherited the house, probate or a transfer-on-death deed may have to be sorted out before anyone can sell; our wills, trusts and probate guide explains how property passes at death.

The purchase contract and its contingencies

Once both sides sign, the purchase agreement binds you. Contingencies are the exits written into it. The common ones let a buyer cancel and get the earnest money back if the home inspection turns up problems, if the loan isn’t approved, if the appraisal comes in below the price, or if the title can’t be cleared. Some contracts make the purchase depend on the buyer selling a current home first.

Each contingency has a deadline, and the deadline matters more than the contingency. Say, hypothetically, a buyer has a 10-day inspection period, finds a cracked foundation on day 12 and tries to back out. Under most form contracts, the inspection exit has already closed, and walking away now could cost the buyer the deposit. Read the deadlines the day you sign, put them on a calendar, and send any notice in writing in the way the contract requires.

In a competitive market, buyers are sometimes pushed to waive contingencies. Waiving the inspection or appraisal contingency doesn’t stop you from inspecting or appraising. It just means a bad result no longer lets you walk away with your deposit.

Agent commissions and buyer agreements after the NAR settlement

For decades, sellers paid both agents through a single commission, and the listing offered a share to the buyer’s agent through the multiple listing service (MLS). A nationwide settlement involving the National Association of Realtors changed that. The court gave final approval in November 2024, and the federal appeals court for the Eighth Circuit affirmed that approval in August 2026. The new rules took effect August 17, 2024.

Two changes matter most to consumers. First, offers to pay the buyer’s agent can no longer be posted on the MLS. Sellers can still agree to pay them, and can still offer buyers concessions like closing-cost help, but that happens through negotiation outside the MLS. Second, an agent who is an MLS participant and works with a buyer must have a signed written agreement before touring a home with that buyer. The agreement has to state the agent’s compensation (an amount or rate, or a clear way of figuring it) that can be objectively determined and isn’t open-ended, and the agent can’t collect more than that amount from any source.

Commissions were never set by law, and they’re negotiable on both sides. Before signing a buyer agreement, read how long it lasts, whether it covers every home or only a specific one, and what you owe if the seller won’t pay your agent’s fee. Those terms vary from agreement to agreement.

What sellers have to disclose

There’s no single national seller-disclosure law. Most states require a disclosure form for homes; a few lean toward “buyer beware.” Federal law adds one rule that applies everywhere: sellers of homes built before 1978 must disclose known lead-based paint and hazards, hand over any lead reports, give the buyer the EPA’s lead pamphlet, include a lead warning statement in the contract, and give the buyer 10 days to arrange a lead inspection unless both sides agree otherwise in writing or the buyer waives it.

State	What the seller must do
California	Complete a Transfer Disclosure Statement on the form set out in Civil Code § 1102.6, describing the home’s condition and known problems.
Texas	Give a seller’s disclosure notice for a single-unit home on or before the date the contract binds the buyer. If it arrives late, the buyer can cancel for any reason within 7 days of receiving it. Foreclosure sales, estate sales by an executor and never-occupied new homes are among the exceptions.
Virginia	Give a disclosure statement in which the owner makes no representations about the property’s condition and tells the buyer to do their own due diligence. The burden falls mostly on the buyer’s inspection.

Even in buyer-beware states, a seller who actively hides a defect (painting over water stains, say) or lies when asked can face a fraud claim. And a disclosure form isn’t a warranty. It reports what the seller knows, which is one more reason to get your own inspection.

Title, title insurance and the closing

Before closing, a title company or attorney searches public records to confirm the seller actually owns the property and to find mortgages, liens, judgments and easements recorded against it. Problems found here (an old mortgage that was paid off but never released, a contractor’s lien) get cleared before closing or become a reason to cancel under the contract.

Title insurance covers what the search missed. If you have a mortgage, your lender will almost always require a lender’s policy, but that policy protects the loan amount, not your equity. An owner’s policy is optional and protects you against covered claims that arose before you bought, such as unpaid taxes or contractor bills. You can generally shop for title insurance and other closing services; your lender has to give you a list of providers you can choose from, and the Loan Estimate shows which services are shoppable.

For most mortgages, the CFPB’s combined Truth in Lending and RESPA disclosure rules (often called TRID) fix two dates. The lender must send a Loan Estimate within three business days of receiving your application, and you must receive the Closing Disclosure, with final loan terms and closing costs, at least three business days before closing. Compare the two line by line. If something changed that you didn’t expect, ask before the closing day, when there’s still time to fix it.

Closing-day wire fraud is common. Scammers copy a real agent’s or title company’s email and send “updated” wiring instructions. Never wire money based on instructions in an email. Call the title or settlement company at a number you already had, not one in the message, and confirm the account details. If you’ve already sent money, call your bank immediately to ask for a recall, and report it to the FBI’s Internet Crime Complaint Center.

Boundary lines, easements and neighbor disputes

Most boundary fights start with a fence, a driveway or a shed that sits somewhere other than where the deed says the line is. The first step is a current survey by a licensed surveyor, not the plat in the closing packet or a line drawn on an online map. Many disputes end there, when both neighbors see where the line actually runs.

Easements are rights to use someone else’s land for a specific purpose: a shared driveway, utility lines, access to a landlocked lot. Some are written and recorded, and they’ll appear in the title report. Others arise from long use or from necessity, and those are the ones that cause lawsuits, because nothing on paper says they exist.

Long occupation can sometimes turn into ownership through adverse possession, though the rules are strict and vary by state:

California: five continuous years of occupation, and the claimant must have paid all property taxes assessed on the land during that time
Texas: ten years of peaceable, adverse possession while using or cultivating the land, under the general rule (shorter periods apply in specific situations)
New York: occupation that is open, continuous, exclusive and actual for the 10-year limitations period, under a “claim of right,” meaning a reasonable basis to believe the land was the possessor’s

California’s tax requirement is why adverse possession claims there rarely succeed: the neighbor with the fence almost never paid taxes on the strip of land. When a dispute can’t be settled, the usual lawsuit is an action to quiet title, where a court declares who owns what. These are slow and survey-heavy, and the legal fees can exceed the value of the strip in question. Mediation or a recorded boundary-line agreement between neighbors is often the cheaper fix.

Before you buy, look at the survey and the title commitment together. Easements and recorded restrictions listed in the title commitment are usually excluded from coverage, and a fence that’s off the line won’t show up anywhere unless someone surveys the property. If the lender doesn’t require a survey, consider paying for one anyway on a lot with fences, a shared driveway or outbuildings near the edges.

What a real estate lawyer costs

Transactional work is commonly a flat fee: a set price to review a contract, handle a residential closing, or prepare a deed. In attorney-closing states, the closing lawyer’s fee usually appears as a line item on the Closing Disclosure. Disputes are different. Boundary, easement, earnest-money and seller-nondisclosure cases are usually billed by the hour against a retainer, with surveyor and expert costs on top. Contingency fees are uncommon in this area.

Check your purchase contract for an attorney’s fee clause. Many form contracts say the winning side in a dispute over the contract can recover its legal fees from the loser, which changes the math on whether to fight. Get any fee arrangement in writing, as the ethics rules expect.

To find a lawyer, your state or local bar’s lawyer referral service can match you with someone who handles residential real estate; the ABA keeps a directory of those services. If you’re buying through a company or as an investor, our LLC guides cover the entity side.