Do you need a real estate attorney to buy or sell a home in Scottsdale?

Whether you need a real estate attorney to buy or sell a home in Scottsdale is a fair question to ask before you sign anything. For an ordinary resale here, you usually don't, because Arizona lets the licensed agents fill out the purchase contract and a licensed escrow agent, usually at a title company, closes the sale. You'd want an attorney when part of the sale is a legal question, like an owner who has died, a divorce, a problem on the title report or a dispute with the HOA or the other side.

I'm Jen Keene, a REALTOR® with eXp Luxury in Scottsdale, AZ, and I'm the agent people call at every stage of their life. I'm a licensed real estate agent and I'm not an attorney, so I'll explain who does what in an Arizona sale and where my job stops.

This is general information and not legal advice. A licensed Arizona attorney is the person who can tell you how the law applies to your situation.

Article 26 of the Arizona Constitution gives a licensed real estate broker or salesperson, acting for the parties to a sale, the right to draft or fill out and complete the documents for that sale without charge. It lists purchase agreements, earnest money receipts, deeds, contracts for sale and bills of sale. The Arizona Department of Real Estate's own exam outline for new agents points to Article 26 as the source of a licensee's authority to complete these documents, and says the licensee has to be representing a party to do it.

The contract most Scottsdale resales use is the Arizona REALTORS® Residential Resale Real Estate Purchase Contract. The Buyer Advisory, which the Arizona Department of Real Estate and the Arizona REALTORS® publish together, tells buyers to read that contract and understand their legal rights and obligations before they make an offer. That's good advice for sellers too, so read the whole contract before you sign, not only the price and the dates.

Arizona law requires anyone acting as an escrow agent in the state to be licensed, under A.R.S. 6-813. The escrow officer is neutral. First American's guidance for escrow agents says the officer's first duty is to stay neutral, to act only on written instructions and not to give legal advice, and the Arizona law firm KEYTLaw describes escrow the same way, as a neutral third party that follows instructions and does not advise you on terms.

So the escrow officer can tell you what a document is, when it's due and what it says. The officer can't tell you whether a term is good for you, and the title company doesn't represent you or the other side. Here's my post on what happens during escrow in Arizona.

The title company also sends the title commitment. According to the Buyer Advisory, that report lists the documents that are exceptions to the title insurance, called Schedule B exceptions, which may include easements, encumbrances and liens. The same advisory says questions about the commitment and the Schedule B documents may be answered by the title or escrow officer, legal counsel or a surveyor. Read each listed document, and if one of them could affect what you plan to do with the property, that's a question to ask before your deadlines pass.

Under Arizona Administrative Code R4-28-1101, the rule for real estate agents, an agent can't take on a service that's outside the agent's field of competence unless the agent brings in someone who is competent to provide it, or tells the client in writing first and the client still hires the agent. The same rule says an agent doesn't have to have expertise beyond what the license requires, but does have to use reasonable care to get the information that matters to you and pass it on accurately.

The same rule says that if a buyer will move in before closing or a seller will stay after it, the agent has to recommend that the client get advice from insurance, legal, tax and accounting professionals about the risks.

In practice, I'll fill out the contract, explain what each section asks you to do and by when, and tell you when a question has become one for an attorney. I won't tell you what your legal position is, and when the answer depends on the law, I'll tell you to ask an attorney.

1. The owner has died. Who can sign the deed depends on how the home was owned. If it's in a trust, the trust document decides who signs, and here's my post on selling a house held in a trust in Arizona. A beneficiary deed, under A.R.S. 33-405, transfers the home at the owner's death, but only if it was signed and recorded with the county recorder before the owner died. For some smaller estates, A.R.S. 14-3971 allows an affidavit of succession to real property, and both the statute and the Maricopa County Superior Court's self-help page say it can't be used until six months after the death and only when the real property, after subtracting what's owed on it, is no more than $300,000. Whether any of these fit your family is a question for an attorney.
2. The sellers are married or divorcing. Under A.R.S. 25-214, both spouses have to join in any transaction to sell, buy or borrow against an interest in community real property. The Arizona School of Real Estate and Business explains it the same way: both spouses sign the deed or deed of trust. If a divorce is underway or the decree says who gets the house, an attorney can tell you what the decree allows.
3. The title commitment shows a problem. An old lien, an easement you didn't expect or a question about where the property line is can come up on the commitment. A.R.S. 12-1101 allows anyone claiming an interest in real property to bring a court action to quiet title, and whether that's needed is an attorney's call.
4. You have a dispute with the HOA. The Arizona Department of Real Estate's HOA dispute page says only an owner or the association may file a petition for a hearing, and that hearings are held before an administrative law judge, which matches A.R.S. 32-2199.01. The same page says the department can't answer legal questions or give legal advice, and it points people to the State Bar of Arizona and AZ Law Help.
5. The contract isn't the standard one. A contract a buyer or seller wrote themselves, a lease with an option to buy, seller financing, or an early move-in or a rent-back are all times to have an attorney read the terms before you sign.
6. You and the other side disagree. If there's a dispute about whether the contract was cancelled correctly, or who gets the earnest money, that's one for an attorney. Here's my post on the inspection period in Arizona, which covers the notices and deadlines that most of these disputes start from.

1. Name the question in one sentence. "Can I sign for my mother's house?" or "What does this easement on the title commitment allow?" gets a faster answer than asking an attorney to look over everything.
2. Ask before you sign, if you can. Once the contract is signed, its deadlines start to matter, so a question about who can sign or what a term means is easier to settle first.
3. Gather the documents. Bring the contract and the counter offers, the title commitment and its Schedule B documents, and anything that shows who owns the home now, such as a trust, a recorded beneficiary deed, a death certificate or a divorce decree.
4. Tell your agent and the escrow officer. Give both of us the attorney's name and how to reach them, so the documents the title company needs go to the right place.
5. Get the answer in writing. An email from the attorney that you can forward to escrow means everyone has the same answer.

The first is expecting the escrow officer to tell you what to do. The officer is neutral and acts on written instructions from both sides, so the advice has to come from your agent on the process or from an attorney on the law.

The second is waiting until the week of closing to mention a death, a divorce or a trust. Those are the documents the title company asks about, and they're easier to sort out at the start. The third is assuming a beneficiary deed works because it was signed. A.R.S. 33-405 says it has to be recorded before the owner's death to be valid.

The fourth is having one spouse sign alone because only one name is on the deed. Under A.R.S. 25-214, community real property needs both spouses to join, so ask the title company early which signatures it needs. And the last is asking an agent for a legal opinion. I'll tell you what the contract asks you to do and by when, and I'll tell you when it's time to ask an attorney. If you're selling, here's my post on what you have to disclose when you sell a house in Arizona.

If a parent has died and the home was in a trust, start with the trust document and ask the title company what it needs to see, which my trust post goes through. If there was no trust, the first question is whether a beneficiary deed was recorded before the death, and the second is whether the estate qualifies for the affidavit under A.R.S. 14-3971 or needs to go through the court. An attorney can answer both, and then you can plan the sale around what they say.

If the home is community property, both spouses sign, even if only one name is on the deed. Community or separate is a question for your title company and an attorney. If you're divorcing, an attorney can tell you what the decree or the court allows before the listing goes live. For the costs that come out of the sale either way, here's my post on who pays what in closing costs in Arizona.

If you're about to buy or sell and you're not sure whether your situation needs an attorney, call me at (480) 203-6605 or send me a message.