A lawyer may be retained by a consumer in two capacities with respect to a real estate transaction:
- As an advisor concerning the drafting of an Offer, or
- As an “agent” concerning the negotiations with respect to an Offer.
In many situations, a lawyer is consulted to draft an Offer. The consumer may be acting on their own or they may indeed have a real estate agent. In this case, the lawyer remains in the background and is never involved in negotiations with the Seller or the Listing agent.
The next step involves the lawyer who is retained in order to negotiate. There is a slight difficulty here because the lawyer does not have access to MLS date and that will place them at a disadvantage. They could either overpay or offer too little and miss the deal altogether.
It is in the second instance where the lawyer fulfills the negotiating role, that the Listing agent must treat the lawyer as the ‘agent” for the Buyer and not attempt to deal with the Buyer directly.
Consequently, changes must be made to the standard Form documents in order to reflect this fact.
Brian Madigan LL.B., Broker