Do You Need a Real Estate Attorney When Buying a Home in Florida?

Buying a home in Florida does not generally require hiring an attorney. Many residential transactions close with real estate brokers, lenders, title professionals, and other participants handling their respective parts of the transaction.

But that does not mean a buyer has a lawyer representing the buyer’s legal interests.

That distinction can become important before the contract is signed, while title is being examined, when questions arise about how ownership should be structured, and when problems surface before closing. It can be particularly relevant in South Florida transactions involving condominiums, waterfront homes, higher-value properties, recent renovations, trusts or business entities, or unusual title issues.
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For buyers in Miami-Dade and Broward Counties, there is another practical consideration. Local custom frequently gives the buyer the opportunity to select the closing or title agent and pay for the owner’s title insurance policy, although the purchase contract ultimately controls. That can give a buyer the opportunity to select a Florida attorney who can efficiently provide legal representation while also handling title and closing services.

​Is a Real Estate Attorney Required to Buy a Home in Florida?

Generally, no.

Florida is not a state in which every residential real estate closing must be conducted by an attorney. A buyer can complete a transaction without retaining legal counsel.

The more useful question, therefore, is not whether an attorney is legally required. It is what the buyer expects the people involved in the transaction to do.

A real estate broker can help negotiate the business terms of the transaction and can work with approved contract forms within the limits of Florida law. A title company or title insurance agent can perform title and closing functions permitted by Florida law. A lender protects its own interests in a financed transaction.

Those functions are different from having an attorney advise the buyer about the buyer’s legal rights and obligations.

Florida Supreme Court decisions have long distinguished between title and closing functions that nonlawyers may perform and legal services that require an attorney. Among other things, legal advice concerning the effect of transaction documents, the marketability or legal status of title, and the manner in which a buyer should take ownership can involve the practice of law.

A title professional can therefore play an important role in a transaction without serving as the buyer’s legal counsel.
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For a buyer, understanding that distinction may be more important than simply asking whether Florida law requires an attorney at the closing table.

Why the Best Time to Involve an Attorney May Be Before Signing the Contract

Buyers sometimes think of a real estate attorney as someone to call if a title problem appears shortly before closing. By that point, however, the most important document in the transaction has usually already been signed.

The purchase contract determines the parties’ rights and obligations. It may establish, among other things:

• the purchase price and deposit requirements;
• inspection rights and deadlines;
• financing terms and contingencies;
• title and survey requirements;
• the closing date;
• responsibility for various closing expenses;
• remedies if either party defaults;
• condominium or homeowners’ association provisions; and
• any special terms negotiated for the particular property.

The commonly used Florida Realtors/The Florida Bar residential contracts are detailed legal agreements. Although they contain standardized provisions, the terms of an individual transaction can be changed by entries in the form, riders, addenda, or negotiated modifications.

A buyer should not assume that a standard provision applies without reading the actual contract.

For example, an inspection period may be different from what the buyer expected. A financing provision may contain deadlines that require action well before closing. A post-closing occupancy arrangement may create issues that are not present in an ordinary transaction. A condominium rider may establish additional rights and obligations.

There also is not necessarily an automatic period after signing during which a buyer can simply send the contract to an attorney and cancel if the attorney objects. Any attorney-review provision must come from the particular contract or an agreement between the parties.

That makes timing important. Legal review before the buyer becomes bound may allow questions to be addressed while the contract can still be negotiated rather than after the buyer’s obligations have already been established.

Example
Suppose a buyer expects to have two weeks to conduct inspections but signs a contract containing a shorter negotiated inspection period. By the time the buyer schedules inspections and realizes how the contract is written, much of the inspection period may already have elapsed.
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An attorney reviewing the agreement before execution could identify the deadline and discuss whether the buyer wants to negotiate additional time.

​What Does the Title Commitment Tell the Buyer?

After a contract is signed, title examination becomes one of the central parts of the transaction.

Before issuing title insurance, the title insurer or its agent must determine whether the property is insurable based on a reasonable title search. The resulting title commitment describes the proposed insurance coverage and identifies matters that must be addressed or will be excluded from coverage.

Although the terminology can initially seem technical, several portions of the commitment are particularly important.

Schedule A generally identifies the proposed insured parties, the property, and other basic information about the transaction.

Schedule B-I generally lists requirements that must be satisfied before the title policy can be issued. These may include satisfying an existing mortgage, resolving a lien, obtaining documents from an estate or entity, or addressing another issue in the chain of title.

Schedule B-II generally identifies exceptions to coverage. These are matters that the eventual policy may not insure against, such as particular easements, restrictions, or survey matters.

The fact that an exception appears in a title commitment does not necessarily mean there is a serious problem. Many exceptions are routine. Others may materially affect how the property can be used or whether the buyer wants to proceed.

That is where the distinction between title processing and legal advice can matter.

An attorney representing the buyer can review the commitment from the buyer’s perspective, identify which requirements remain unresolved, evaluate the legal significance of exceptions, and determine whether an issue should be cured, clarified, insured over, accepted, or addressed through the contract before closing.

Common title problems can include:

• old mortgages that were paid but never properly released;
• judgment or other liens;
• defects or inconsistencies in prior deeds;
• unresolved interests arising from a probate estate;
• easements or restrictions affecting the property; and
• ownership issues involving prior transfers.

Example
Assume the title search reveals a mortgage from a prior owner that appears to have been paid years ago but was never formally satisfied in the public records.
​The issue may be curable, but the buyer ordinarily would want it resolved before taking title. The attorney can address the problem through the contractual title process and work toward obtaining the necessary release or other acceptable cure before closing.

​How You Take Title Can Matter Long After Closing

The deed does more than identify the property’s new owner. The form of ownership can affect what happens when an owner dies, the rights of co-owners, creditor issues, estate planning, and, in some situations, Florida homestead considerations.

Depending on the circumstances, residential property may be owned:

• by one person individually;
• by two or more people as tenants in common;
• as joint tenants with right of survivorship;
• by married spouses as tenants by the entirety;
• through a trust; or
• through a business or other legal entity.

Those choices are not interchangeable.

For example, Florida law generally does not create a right of survivorship merely because two people are named as owners. The deed must establish the intended form of ownership. Married couples may have additional considerations because Florida recognizes tenancy by the entirety, which can have both survivorship and creditor-related consequences.

Trust or entity ownership can present different considerations involving estate planning, homestead, financing, liability, insurance, and future transfers.

The appropriate choice depends on the buyer’s circumstances. That is why deciding how title should be held is not simply an administrative question for the person preparing the deed.

​It is a legal decision that should be considered before the deed is prepared and recorded.

​Surveys Can Reveal Problems the Public Records Do Not

A title search examines recorded information. A survey examines the property on the ground.
That distinction matters.

A survey can identify matters such as:

• property boundaries;
• fences or structures crossing boundary lines;
• driveway or access issues;
• recorded and apparent easements;
• encroachments;
• discrepancies involving the property’s legal description; and
• other physical conditions affecting the land.

Florida law does not make a survey a universal prerequisite to every residential closing; although, lenders and title insurers may have their own requirements. A current qualifying survey can also affect the scope of exceptions contained in an owner’s title insurance policy.

For higher-value or waterfront properties, the survey can be especially important because access, easements, setbacks, seawalls, docks, waterfront boundaries, and improvements near property lines may have substantial practical consequences.

Example
A buyer purchasing a waterfront home may discover from the survey that a fence, driveway, dock-related improvement, or other structure does not line up with the legal boundaries or recorded easements as expected.
​The question then becomes not merely whether the survey contains a notation, but what that notation means for ownership, use, title insurance, and the buyer’s willingness to close.

​Recent Renovations Can Create Construction-Lien Issues

A recently renovated home can look attractive to a buyer, but recent work can create an additional title consideration.

Florida’s Construction Lien Law gives contractors, subcontractors, and certain material suppliers potential lien rights when they have not been paid. In some circumstances, lien rights can exist before a claim of lien appears in the public records.

That means a title search performed shortly before closing may not always tell the entire story about very recent construction.

Closing documents and title underwriting procedures commonly address this risk through affidavits, lien releases, searches, and other requirements appropriate to the particular transaction.

If a seller recently completed substantial work, a buyer’s attorney can review what has been done to address potential lien exposure and whether additional documentation should be obtained before closing.

Example
A seller may have paid the general contractor for a major renovation but have no direct knowledge of whether every subcontractor or supplier was paid.
​That does not necessarily prevent the transaction from closing. It does mean the buyer and title insurer may need appropriate documentation before the buyer accepts title.

​Buying a Florida Condominium Requires Additional Review

Condominium purchases deserve separate attention, particularly in Miami Beach and other South Florida communities where condominiums make up a large portion of the residential market.

The buyer is not purchasing only the interior of a unit. The buyer is acquiring an ownership interest governed by a declaration, bylaws, rules, budgets, assessments, association obligations, and other documents that can materially affect the property’s cost and use.

For a Florida condominium resale, current law requires delivery of specified condominium documents and information to the buyer. Depending on when those materials are provided, the buyer may have a statutory period to cancel the contract. Current law provides a seven-day period for certain resale condominium disclosures, excluding Saturdays, Sundays, and legal holidays. Different rules apply to purchases from developers.

Required or relevant materials can include:

• the declaration of condominium;
• articles of incorporation and bylaws;
• rules and regulations;
• the association’s budget and financial information;
• the Frequently Asked Questions and Answers document;
• applicable milestone inspection information; and
• structural integrity reserve study information.

The financial and structural materials have become particularly important in recent years.

A buyer should understand whether the association is adequately funding reserves, whether substantial repairs are anticipated, whether special assessments have been approved or discussed, and whether structural inspection issues affect the building.

An association estoppel certificate is also an important closing document because it can identify amounts owed to the association and other information affecting the unit.

None of this means an attorney can predict whether a condominium association will impose a future assessment. Boards may make decisions after closing based on circumstances that did not exist or were not known when the buyer purchased.

The more realistic objective is to review the information that is available before closing, identify issues that warrant further inquiry, and determine whether the buyer has contractual or statutory rights that should be exercised before those rights expire.

Example
Suppose a condominium buyer receives a structural reserve study shortly before closing showing substantial anticipated expenditures that had not been understood when the contract was signed.
​The legal questions may include whether the required documents were timely provided, whether a statutory cancellation period remains open, what the contract says about pending or approved assessments, and whether the buyer wants additional information before proceeding.

​Who Chooses the Closing and Title Agent in Miami-Dade and Broward?

Closing customs are not identical throughout Florida.

In many parts of the state, residential contracts traditionally provide for the seller to select the title or closing agent and pay for the owner’s title insurance policy.

Miami-Dade and Broward Counties commonly operate differently. In these counties, residential transactions frequently provide for the buyer to select the closing or title agent and pay for the owner’s title insurance policy.

This is a matter of local practice and contract, not a statewide statutory rule. The parties can agree to a different allocation, and the actual contract should always be reviewed.

For a South Florida buyer, however, this customary arrangement can be significant because the buyer may have a meaningful choice about who handles the title and closing work.

A Florida attorney who handles title insurance may be able, where appropriate, to perform several related functions in the same transaction:

• represent the buyer in reviewing and negotiating the contract;
• examine title and address title defects;
• review the title commitment and exceptions;
• advise the buyer about how to take title;
• coordinate closing requirements;
• conduct or coordinate the closing; and
• issue the owner’s title insurance policy.

Those are related functions, but they should not be confused with one another.

Legal representation involves advising and representing the buyer. Title insurance involves determining insurability and issuing coverage under the terms of the policy. Closing services involve coordinating documents, funds, and the completion of the transaction.

​Having an attorney involved in more than one of those capacities can be convenient in an appropriate transaction, but it does not guarantee that a particular transaction will be simpler or free of problems.

What Does Owner’s Title Insurance Do?

Title insurance addresses certain risks relating to ownership of real property.

An owner’s title insurance policy protects the buyer’s insured ownership interest, subject to the terms, exclusions, exceptions, and limits contained in the policy.

A lender’s title insurance policy protects the lender’s mortgage interest rather than the buyer’s equity.

Those policies serve different purposes.

Depending on the policy and its exceptions, owner’s coverage may protect against certain title defects that existed before the policy date, including some problems involving ownership, liens, or recorded instruments that were not properly identified or resolved.

Title insurance does not insure against every possible problem affecting property.

For example, policies contain exclusions, and Schedule B may identify matters that are specifically excepted from coverage. Certain zoning, governmental, environmental, physical-condition, and post-policy issues may fall outside the policy.

For that reason, a buyer should distinguish between two questions:
Is the title insurable?
and
Are the title conditions, exceptions, restrictions, and other legal issues acceptable to this particular buyer?

They are not always the same question.

​Florida regulates title insurance rates, so the basic title premium is generally governed by state regulation rather than negotiated in the same manner as other transaction expense might be.

​What About a Foreign Seller?

South Florida residential transactions frequently involve international parties.

One federal issue that can arise is the Foreign Investment in Real Property Tax Act, commonly known as FIRPTA.

When a seller is a foreign person, federal law may impose withholding and reporting obligations on the buyer. Exceptions and reduced-withholding rules may apply depending on the circumstances, so a foreign seller does not automatically mean that the same withholding rule applies in every transaction.

The important point for a buyer is that FIRPTA can impose obligations directly on the purchaser. It therefore should be identified and addressed before closing rather than treated solely as the seller’s tax problem.

​International transactions can raise other issues as well, including how the buyer will hold title and, in some circumstances, restrictions affecting certain foreign purchasers of Florida real estate.

​When Should a Florida Home Buyer Consider Hiring an Attorney?

There is no single answer for every transaction.

A straightforward purchase may close without separate buyer’s counsel. Other transactions present circumstances in which legal representation can become considerably more useful.

A buyer may want to consider involving an attorney when:

• the buyer wants legal advice before signing the purchase contract;
• contract provisions need to be negotiated or modified;
• the buyer wants someone whose role is specifically to represent the buyer’s legal interests;
• title problems appear in the title commitment;
• the buyer has questions about how the property should be titled;
• the property is being acquired through a trust or entity;
• the transaction involves a condominium;
• the property is waterfront or otherwise presents unusual survey or property-right issues;
• there has been substantial recent construction or renovation;
• the property is particularly valuable;
• a foreign seller or international party is involved; or
• an unexpected legal issue arises before closing.

For buyers in Miami-Dade and Broward Counties, there is also a practical reason to consider the issue early. Under customary South Florida practice, and depending on the terms of the purchase contract, these buyers frequently select the closing/title agent and pay for the owner's title policy. The decision about who will handle title and closing therefore may arise at the contract stage.

A buyer who wants an attorney to provide legal representation and also handle the title insurance and closing functions should therefore consider that preference before the contract identifies the closing agent.

​Buying a Home or Condominium in South Florida?

​Steinberg & Associates, P.A. represents buyers and sellers in real estate transactions from its Miami Beach office and assists with contract review, title examination, title insurance, closing, and related real estate matters throughout Miami-Dade County, Broward County, and South Florida.

For additional information, see our Real Estate Law page. Buyers dealing with a dispute may also find information on our Real Estate Litigation and Condominium Disputes pages. Estate-planning considerations involving ownership of a new residence are discussed on our Wills, Trusts & Estates page.

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Legal Disclaimer: This article has been prepared by Steinberg & Associates, P.A. for general informational purposes only and does not constitute legal advice. The information contained herein is based on Florida law as of the date of publication and is subject to change. Every real estate transaction depends on its particular contract, property, parties, facts, and circumstances, and nothing in this article should be relied upon as a substitute for advice from a qualified Florida attorney regarding a specific transaction. Reading this article does not create an attorney-client relationship between you and Steinberg & Associates, P.A. or any of its attorneys. For advice specific to your circumstances, please consult a licensed Florida attorney. This article was prepared by Richard L. Steinberg, Esq. of Steinberg & Associates, P.A., with the assistance of artificial intelligence drafting tools and reflects legal research conducted through the date of publication.

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