Real Estate

Is my RE Lawyer representing me properly?

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  • Sep 13th, 2021 10:39 am
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[OP]
Sr. Member
Sep 11, 2017
517 posts
378 upvotes

Is my RE Lawyer representing me properly?

The lawyer I've chosen and I don't see eye to eye on what their scope of work should be. I have a situation where I feel the builder is contradicting the terms of the PSA and email directions I've received from them throughout the build process (have everything documented). I have emailed the builder's team with my position (CCing my lawyer), and my lawyer feels if the builder does not agree with my position on email then the only option is go straight to litigation and engage a separate lawyer for that (I feel that would be the nuclear option instead of making any attempts at negotiating, but it seems it wipes my lawyers hands of the situation to make it as straight forward for them as possible.) For those who've had a situation where they've needed their lawyer to do some work/provide guidance/write letters outside of the normal transactional stuff on a closing, what should I reasonably expect my lawyer should do?

My expectation would have been my lawyer would be open to reach out to the builders council or send over a legal letter to the builder and their council to reiterate my position and help make an attempt to negotiate a resolution. My lawyer feels I should trying to negotiate with the builder directly, and getting the lawyers involved is a waste of time.

Appreciate the insights everyone, if my expectations of what my lawyer's scope of role is not realistic I just want to know.
21 replies
Deal Addict
Mar 2, 2017
3235 posts
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Toronto/Markham
Without knowing all the details and context I think the lawyer is right in you negotiating directly with the builder and not through the lawyer. That's actually great if he is pushing that as most lawyers hijack the negotiation to their benefit and for more billable hours, but this is on big agreements not some flat service fee stuff which is what this likely is.

The key here is to understand what "I feel the builder is contradicting the terms of the PSA" means, if your lawyer is already suggesting litigation (which is the worst and last option - ask me how I know) it leads me to believe you probably don't have leverage and your lawyer is indirectly telling you that.

What's your lawyer's take on the 'contradicting terms of the PSA'? Does he agree with you? If he does then he should have alternatives other than litigation.
RE Broker
Deal Addict
Jul 3, 2007
4055 posts
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Toronto
big money to go through litigation, is it worth it ? you need to work out the pros and cons of whatever this disagreement is with your builder....

and builders have lawyers that will drag this out forever, they are well protected against this stuff....
Newbie
Jul 27, 2020
81 posts
96 upvotes
Negotiate with the builder first, and then determine if the cost is worth using a lawyer or you can represent yourself with just 10% downside, say you go after them in small claims for 5000 as an example with self representation , the maximum you can lose is 500 in this case. The builder no doubt will lose more than 500 with their representation. More often than not they will come to a settlement at this stage. This is a better way to fight builders with miniminal risk. I’d only go after a builder with a lawyer for something 20,000+ in damages
Last edited by will5619 on Aug 24th, 2021 10:36 am, edited 3 times in total.
[OP]
Sr. Member
Sep 11, 2017
517 posts
378 upvotes
RichmondCA wrote: Without knowing all the details and context I think the lawyer is right in you negotiating directly with the builder and not through the lawyer. That's actually great if he is pushing that as most lawyers hijack the negotiation to their benefit and for more billable hours, but this is on big agreements not some flat service fee stuff which is what this likely is.

The key here is to understand what "I feel the builder is contradicting the terms of the PSA" means, if your lawyer is already suggesting litigation (which is the worst and last option - ask me how I know) it leads me to believe you probably don't have leverage and your lawyer is indirectly telling you that.

What's your lawyer's take on the 'contradicting terms of the PSA'? Does he agree with you? If he does then he should have alternatives other than litigation.
Thank you for this great perspective.

My lawyer was non committal in advising me if he agreed with me on whether the builder is violating the PSA. My lawyer essentially said if I feel they are in the wrong, then I should email the builder (which I've done) and if the builder still refuses to budge, then I should decide if I want to engage litigation council if I wish to go there. My lawyer is putting the onus all me to decide what to do at each step without any real advise. The impact of this situation is $10k+ however the effort and energy needed to battle this out in litigation is something I would need to consider. An alternative approach I'm contemplating is getting my RE agent involved to see if he can help broker an understanding with the builder (my perspective is my RE agent has the contacts/relationships with the builder that could help broker a resolution).
[OP]
Sr. Member
Sep 11, 2017
517 posts
378 upvotes
joepipe wrote: big money to go through litigation, is it worth it ? you need to work out the pros and cons of whatever this disagreement is with your builder....

and builders have lawyers that will drag this out forever, they are well protected against this stuff....
Agreed, its a shady situation that the builder is trying to get away with and the optics feel like they are using the daunting nature of small guy vs builder to scare me into backing off. At the very least this will be a learning experience for me and dealing with this specific builder. (Trying to look at this situation and how I can learn from it)
Deal Fanatic
Jul 3, 2011
6517 posts
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Thornhill
FedExpress wrote: The lawyer I've chosen and I don't see eye to eye on what their scope of work should be. I have a situation where I feel the builder is contradicting the terms of the PSA and email directions I've received from them throughout the build process (have everything documented).
What is the builder not doing?

They have significant leeway built into the contract.
Deal Addict
Jul 3, 2007
4055 posts
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Toronto
FedExpress wrote: Agreed, its a shady situation that the builder is trying to get away with and the optics feel like they are using the daunting nature of small guy vs builder to scare me into backing off. At the very least this will be a learning experience for me and dealing with this specific builder. (Trying to look at this situation and how I can learn from it)
these builders have 50 pages of contract with hundreds of outs for them legally speaking
Deal Fanatic
Mar 21, 2010
6575 posts
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FedExpress wrote: The lawyer I've chosen and I don't see eye to eye on what their scope of work should be.
What is the actual scope of work? What was agreed on in your contract with the lawyer? It sounds like there's nothing wrong, it's just two different viewpoints, and in cases like that it's good to go back to what was agreed.

It looks to me like your lawyer thinks his or her role is to do the paperwork necessary to make the sale legally compliant (i.e., a process), whereas you expect a 'consulting lawyer' for want of a better term, someone to do ad-hoc things and advise you beyond the standard process.
[OP]
Sr. Member
Sep 11, 2017
517 posts
378 upvotes
Manatus wrote: What is the actual scope of work? What was agreed on in your contract with the lawyer? It sounds like there's nothing wrong, it's just two different viewpoints, and in cases like that it's good to go back to what was agreed.

It looks to me like your lawyer thinks his or her role is to do the paperwork necessary to make the sale legally compliant (i.e., a process), whereas you expect a 'consulting lawyer' for want of a better term, someone to do ad-hoc things and advise you beyond the standard process.
My expectation is that the lawyer's role is to first & foremost represent my interests and work to protect my interests in this transaction. If the other party is looking to play fast and loose with the contract interpretation or renege on a commitment, then it would be the lawyer's role to represent me and help stick handle the situation via communication with the builders council or builders directly. I agree with you, its clear to me now my lawyer's expectation was to be more of a paperwork processor. That is great when everything runs smoothly, but with any contract there is always a risk of an issue coming up, and when it does, having a 'paperwork focused only lawyer' who isn't willing to protect their client's interests, doesn't seem like essence of what a RE lawyer role is IMO. It's like having a pilot who says they will only fly an airplane when the weather is clear, but if they encounter any turbulence, a pilot that throws up their hands and says, they aren't willing to fly the plane anymore, isn't expectable in anywhere.
Deal Addict
Mar 2, 2017
3235 posts
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Toronto/Markham
FedExpress wrote: Thank you for this great perspective.

My lawyer was non committal in advising me if he agreed with me on whether the builder is violating the PSA. My lawyer essentially said if I feel they are in the wrong, then I should email the builder (which I've done) and if the builder still refuses to budge, then I should decide if I want to engage litigation council if I wish to go there. My lawyer is putting the onus all me to decide what to do at each step without any real advise. The impact of this situation is $10k+ however the effort and energy needed to battle this out in litigation is something I would need to consider. An alternative approach I'm contemplating is getting my RE agent involved to see if he can help broker an understanding with the builder (my perspective is my RE agent has the contacts/relationships with the builder that could help broker a resolution).
No problem.

As a follow up, a lot of people falsely assume that lawyers are business advisors, they are not, they are trained not to be as that introduces liability on their end. That added exposure only has a downside for them. I've worked with dozens of lawyers and I can tell you this is pretty standard, once you build a relationship and find someone with mutual trust you start getting the low key advice/non legalese answers (this level of rapport takes time).

That being said your last option is your best and most effective option, definitely go down that path. Update the thread when you come to a resolution, I am sure the RE agent/broker can get you as best of a resolution as you can.
RE Broker
Deal Fanatic
Jul 3, 2011
6517 posts
3788 upvotes
Thornhill
FedExpress wrote: My expectation is that the lawyer's role is to first & foremost represent my interests and work to protect my interests in this transaction. If the other party is looking to play fast and loose with the contract interpretation or renege on a commitment, then it would be the lawyer's role to represent me and help stick handle the situation via communication with the builders council or builders directly. I agree with you, its clear to me now my lawyer's expectation was to be more of a paperwork processor. That is great when everything runs smoothly, but with any contract there is always a risk of an issue coming up, and when it does, having a 'paperwork focused only lawyer' who isn't willing to protect their client's interests, doesn't seem like essence of what a RE lawyer role is IMO. It's like having a pilot who says they will only fly an airplane when the weather is clear, but if they encounter any turbulence, a pilot that throws up their hands and says, they aren't willing to fly the plane anymore, isn't expectable in anywhere.
Your lawyer's role is to give you the best representation and advice they can give so as to avoid unnecessary expense to you = and litigation.

It seems your lawyer is trying to do just that. It's up to you as to how much you would pay to resolve whatever issues you have with the builder and should your lawyer choose to work with you in that regard you're stuck with their bill until you fire them.

But your lawyer also seems to be telling you that in their opinion your position is not worth pursuing - as they are not a litigation lawyer - there is quite a diference - find one if you wish to pursue your position.

Sometimes you need to listen to the advice of people you hire.

What can be so material in what was promised for $10,000 on a new build?
Deal Fanatic
Mar 21, 2010
6575 posts
3726 upvotes
Toronto
FedExpress wrote: My expectation is that the lawyer's role is to first & foremost represent my interests and work to protect my interests in this transaction. If the other party is looking to play fast and loose with the contract interpretation or renege on a commitment, then it would be the lawyer's role to represent me and help stick handle the situation via communication with the builders council or builders directly. I agree with you, its clear to me now my lawyer's expectation was to be more of a paperwork processor. That is great when everything runs smoothly, but with any contract there is always a risk of an issue coming up, and when it does, having a 'paperwork focused only lawyer' who isn't willing to protect their client's interests, doesn't seem like essence of what a RE lawyer role is IMO. It's like having a pilot who says they will only fly an airplane when the weather is clear, but if they encounter any turbulence, a pilot that throws up their hands and says, they aren't willing to fly the plane anymore, isn't expectable in anywhere.
I've been in the same place, bought a condo for the first time, first ever home purchase, and the lawyer said "here, the condo declaration and bylaws came in". And I said "well, how are they? Anything weird? Any red flags? What should I pay attention to when reading?" - and the lawyer clearly hadn't read or scanned them and didn't think that was their role. Maybe it was, maybe it wasn't. Maybe my expectations were completely unreasonable (these were the days when you could have fancy conditions like the ability to pull out if you didn't like how the status certificate looked, so it was important). But, I wanted what you wanted, professional advice as a lawyer on this matter as a whole, from offer to closing. What they were offering was more like - we'll make sure your title is registered properly.

Live and learn, I guess.
Deal Addict
Mar 2, 2017
3235 posts
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Toronto/Markham
Manatus wrote: I've been in the same place, bought a condo for the first time, first ever home purchase, and the lawyer said "here, the condo declaration and bylaws came in". And I said "well, how are they? Anything weird? Any red flags? What should I pay attention to when reading?" - and the lawyer clearly hadn't read or scanned them and didn't think that was their role. Maybe it was, maybe it wasn't. Maybe my expectations were completely unreasonable (these were the days when you could have fancy conditions like the ability to pull out if you didn't like how the status certificate looked, so it was important). But, I wanted what you wanted, professional advice as a lawyer on this matter as a whole, from offer to closing. What they were offering was more like - we'll make sure your title is registered properly.

Live and learn, I guess.
Unfortunately your experience is very common, in this case I feel it's a missed opportunity for the lawyer when they don't take the time to provide context/educate the client. It's especially bad with real estate lawyers, that's why when you find a good one you hang on to them, majority are just like what you described.

This is especially bad when you get into more niche RE transactions, for example buying/selling an assignment is a totally different ball game. 9/10 lawyers will take the work on even though majority have no idea what to look for and rarely do this type of work, the service and outcome for the client then reflects that.
RE Broker
[OP]
Sr. Member
Sep 11, 2017
517 posts
378 upvotes
RichmondCA wrote: Unfortunately your experience is very common, in this case I feel it's a missed opportunity for the lawyer when they don't take the time to provide context/educate the client. It's especially bad with real estate lawyers, that's why when you find a good one you hang on to them, majority are just like what you described.

This is especially bad when you get into more niche RE transactions, for example buying/selling an assignment is a totally different ball game. 9/10 lawyers will take the work on even though majority have no idea what to look for and rarely do this type of work, the service and outcome for the client then reflects that.
Even though I'm in the middle of this experience one thing I would certainly do differently next time is to go with a lawyer that my agent has a reputable relationship with. Sticky situations require collaboration through dialogue and having your team familiar and comfortable with each other is important. I've tried several times to organize a quick strategy call with my agent, lawyer & I together. My agent has been very helpful & accommodating, my lawyer doesn't follow direction and just calls me directly. Working in silos is a difficult way to problem solve
Deal Addict
Mar 2, 2017
3235 posts
6188 upvotes
Toronto/Markham
FedExpress wrote: Even though I'm in the middle of this experience one thing I would certainly do differently next time is to go with a lawyer that my agent has a reputable relationship with. Sticky situations require collaboration through dialogue and having your team familiar and comfortable with each other is important. I've tried several times to organize a quick strategy call with my agent, lawyer & I together. My agent has been very helpful & accommodating, my lawyer doesn't follow direction and just calls me directly. Working in silos is a difficult way to problem solve

This is a prime example of why having a solid agent is key, but it falls on deaf ears here on RFD where everything is all about commission cutting only. Sounds like you got a good realtor, hang on to him/her, some of us are very well connected and can save people time, money, agony in these very situations.
RE Broker
Deal Fanatic
Mar 21, 2010
6575 posts
3726 upvotes
Toronto
FedExpress wrote: Even though I'm in the middle of this experience one thing I would certainly do differently next time is to go with a lawyer that my agent has a reputable relationship with.
Actually the experience I mentioned was with a lawyer that my agent recommended (and the lawyer wasn't cheap). When I told my agent about it, he gave me a "well whadda you expect?" kind of answer. The whole thing felt more like a scam than one reputable professional referring another, like I was a captive mark.
Deal Fanatic
Jul 3, 2011
6517 posts
3788 upvotes
Thornhill
FedExpress wrote: Even though I'm in the middle of this experience one thing I would certainly do differently next time is to go with a lawyer that my agent has a reputable relationship with. Sticky situations require collaboration through dialogue and having your team familiar and comfortable with each other is important. I've tried several times to organize a quick strategy call with my agent, lawyer & I together. My agent has been very helpful & accommodating, my lawyer doesn't follow direction and just calls me directly. Working in silos is a difficult way to problem solve
Some lawyers just don't want to work with the agent, they see their job as done unless the lawyer calls upon them to assist with something that is not of a legal matter. Technically that's true. If your lawyer feels you're trying to place your agent in the middle of what he's doing he would react this way after all, the Realtors hand off the rest of the transaction to the lawyer once an offer is firmed up and must step aside. If though he's unwilling to even communicate with your agent - they're just being controlling. Generally my clients' lawyers will take it upon themselves to copy me on emails that is not strictly between between them and the client directly or direct me to do certian things because it is more cost efficient to the client and I've had some I've never heard from - those are the ones my clients complain about.
[OP]
Sr. Member
Sep 11, 2017
517 posts
378 upvotes
licenced wrote: Some lawyers just don't want to work with the agent, they see their job as done unless the lawyer calls upon them to assist with something that is not of a legal matter. Technically that's true. If your lawyer feels you're trying to place your agent in the middle of what he's doing he would react this way after all, the Realtors hand off the rest of the transaction to the lawyer once an offer is firmed up and must step aside. If though he's unwilling to even communicate with your agent - they're just being controlling. Generally my clients' lawyers will take it upon themselves to copy me on emails that is not strictly between between them and the client directly or direct me to do certian things because it is more cost efficient to the client and I've had some I've never heard from - those are the ones my clients complain about.
Thank you for these valuable insights.

As a client, if there is a situation I feel warrants a joint discussion by my representatives in this transaction, I would want to see my team working together. You're right, I suppose some lawyers just don't want to work the agent. In my discussions with the lawyer, they mentioned to me about going back to the builder and communicating xyz. My agent has the relationships with the builder, I don't. Now I have to play the middle man between the lawyer & agent, which just seems very inefficient, and certainly doesn't remove the friction for me as the client (I just have to work harder now playing the middle man). As you referenced, my lawyer could be thinking I'm getting the agent involved in a situation the agent shouldn't be (I can't see how he would think that as my agent represents me in this transaction) but at a minimum I'd expect the lawyer to communicate their POV with me and not steamroll over my requests. I feel he is being controlling and that is not acceptable for me. (Lesson Learned)

I'm curious, you mentioned from your experience your client's lawyers sometimes get you involved to coordinate some activities on behalf of your client to make this easier. Would you mind sharing some examples of what that entails?
Deal Fanatic
Jul 3, 2011
6517 posts
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Thornhill
FedExpress wrote: I'm curious, you mentioned from your experience your client's lawyers sometimes get you involved to coordinate some activities on behalf of your client to make this easier. Would you mind sharing some examples of what that entails?
Sure, here are just a few all of them to avoid the lawyer charging the client more.

Seller's turned key over to their brokerage instead of their lawyer, my buyer's lawyer insisted on having them before releasing the funds, had me pick them up so as to avoid the courier charge

My clients were on a private boat in the Caribbean just prior to closing, there was no digital signing available, lawyer received a request for a closing change he had me fax the request to their next hotel stop and had them fax it back.

Had me prepare an amendment for a small change that would not affect closing

My seller clients were out of country English was not their first language and so the conversations were longer, buyer wanted a not so simple change to closing, to ensure they understood the nuances of what the lawyer was suggesting he had me contact the and respond to him in email.

There have been instances where they just want a document or information of some sort from them so rather than have to explain to the client what is needed, they have me do it.

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