Also related: What’s the deal with mail-away closings?
Also related: What’s the deal with mail-away closings?
A Mail-away Closing is one in which one or more of the parties is most often, though not necessarily, out-of-state and asks if the closing documents be emailed to them and then executed in front of a notary or other signing service. Unfortunately, the ethical permissibility of these types of closings is suspect at best and we really can’t use mobile notary services for our closings. It’s just how Georgia’s legal ethics rules are.
You see, Georgia is an attorney state. Real estate closings are considered the practice of law and must be conducted, and all the documents signed, in the presence of a Georgia lawyer.
In fact, the Georgia’s State Bar and Supreme Court have consistently held that a Georgia attorney must be physically present at closing:
[A] lawyer cannot delegate to a nonlawyer the responsibility to “close” the real estate transaction without the participation of an attorney. Formal Advisory Opinion No. 86-5 also provides that “Supervision of the work of the paralegal by the attorney must be direct and constant to avoid any charges of aiding the unauthorized practice of law.” The lawyer’s physical presence at a closing will assure that there is supervision of the work of the paralegal which is direct and constant. Supreme Court of Georgia, Formal Advisory Opinion 00-3. (Emphasis added).
The Supreme Court of Georgia additionally wrote:
…[W]e have issued formal advisory opinions which confirmed that a lawyer cannot delegate responsibility for the closing of a real estate transaction to a non-lawyer and required the physical presence of an attorney for the preparation and execution of a deed of conveyance (including, but not limited to, a warranty deed, limited warranty deed, quitclaim deed, security deed, and deed to secure debt). Supreme Court of Georgia, In Re: UPL Advisory Opinion 2003-2. (Emphasis added).
Not only that, but the Ethics Committee of the Real Property Section of the State Bar of Georgia states that an attorney must
“[a]ttend the closing of the transaction. An attorney must be physically present at the closing of a transaction and may not telephonically supervise a nonlawyer officiating at the closing.” Ethics Committee of the State Bar of Georgia, Residential Real Estate Closing Procedure Handbook. (Emphasis added).
Not only is an Georgia lawyer’s presence required when closing documents are signed, the Georgia Supreme Court approved an advisory opinion by the Georgia State Bar’s Standing Committee on the Unlicensed Practice of Law finding that the preparation and execution of a deed of conveyance by a non-lawyer represented the unauthorized practice of law:
[W]e have consistently held that it is the unauthorized practice of law for someone other than a duly-licensed Georgia attorney to close a real estate transaction or to prepare or facilitate the execution of such deed(s) for the benefit of a seller, borrower, or lender. Supreme Court of Georgia, In Re: UPL Advisory Opinion 2003-2.
Ultimately, this means that an attorney would not be satisfying his or her ethical obligations by merely sending closing documents to be signed in front of a mobile notary or other similar service. Closing documents simply must be signed in a Georgia attorney’s presence.
Absolutely! At Harlan and Associates, we have over thirty years of experience working with real estate investors.
We represent all types of real estate investor clients, and have worked with many hard-money and private lenders, rehabbers, subject-to investors, land trust investors, property wholesalers, portfolio investors, landlords, and even raw land developers and builders.
A Double Closing is the simultaneous purchase and sale of real property. In a typical double-closing scenario, a real estate investor acquires property from a seller at one price and immediately resells it to an end-buyer at a higher price. The difference between the two prices represents the profit to the investor.
Double Closings are also commonly-referred to as simultaneous, back-to-back, or same day closings. We have, and will, handle these types of closings under limited circumstances:
1. The end-buyer’s lender must be specifically informed that the seller for their transaction is not in title; and they must consent in writing to the transaction.
2. Each half of the transaction must be kept fully separate and stand on its own. The initial acquisition must be fully funded and disbursed with money coming from and going to all appropriate parties. The end sale must also stand on its own. The proceeds from the sale can not be used to fund any portion of the acquisition.
Harlan and Associates will not handle any type of simultaneous or double closing if the first of the transactions is a short sale.
As a practical matter, double closings are only possible if the end purchaser is paying with either Hard Money or cash. Because assignment fees are also appropriate in most of these transactions, we encourage their use instead in order to save you the costs of paying for two separate closings.
Please understand that the circumstances in which a double or simultaneous closing would be appropriate are exceedingly rare, and as an investor you are probably better served by looking at alternate financing and investment options.
Closing costs will differ from property to property; if you’d like an estimate, just request a fee sheet, and we’ll send one out to you.