attorney review period in real estate transactions

In Illinois, the attorney review period is a critical component of residential real estate transactions, designed to protect both buyers and sellers by allowing their attorneys to scrutinize and potentially modify the terms of a purchase contract before it becomes fully binding. This period, typically lasting five business days, provides a safeguard against unforeseen legal or contractual issues, ensuring that the agreement aligns with the parties’ interests and complies with state regulations. Understanding the attorney review period’s purpose, process, and implications is essential for anyone navigating the Illinois real estate market.

Purpose of the Attorney Review Period

The attorney review period serves as a legal safety net, addressing the complexity of real estate contracts and the significant financial stakes involved. Most residential real estate contracts in Illinois are initially prepared by real estate agents using standardized forms, such as the Multi-Board Residential Real Estate Contract or the Chicago Association of Realtors Contract. While these forms are designed to cover common scenarios, they may not fully account for the unique circumstances of every transaction. The attorney review period allows legal professionals to examine the contract in detail, ensuring it is fair, legally sound, and reflective of the parties’ intentions. It also provides an opportunity to address issues that may arise from inspections, title searches, or financing contingencies, protecting clients from potential disputes or financial losses.

Duration and Initiation

The attorney review period typically begins immediately after both the buyer and seller sign the initial real estate contract, a milestone known as the “Date of Acceptance.” Unless otherwise specified, this period lasts five business days, though it can be extended by mutual agreement between the parties’ attorneys if additional time is needed to resolve issues. It is crucial for buyers and sellers to deliver the signed contract to their attorneys promptly, as delays can limit the time available for review and negotiation. If the contract is not delivered within the five-day window, the attorney’s ability to propose changes or terminate the agreement may be forfeited, potentially locking the parties into unfavorable terms.

Scope of the Attorney’s Role

During the attorney review period, attorneys for both the buyer and seller perform a comprehensive analysis of the contract. Their primary objectives are to ensure the contract protects their client’s interests, complies with Illinois law, and addresses any potential risks. Key tasks include:

1. Contract Review and Modifications: Attorneys examine all contract terms, including contingencies, deadlines, and optional provisions. They may propose modifications to enhance protections, such as adding contingencies for financing, appraisals, or inspections. For example, a buyer’s attorney might request an appraisal contingency to allow price negotiations if the property’s appraised value is lower than the purchase price. However, certain terms, such as the purchase price and broker’s fees, are typically not subject to modification during this period unless tied to specific issues like inspection findings or title defects.
2. Title and Property Issues: Attorneys review the title search to confirm the seller can transfer a clear deed, free of liens, encumbrances, or disputes. If issues like a former spouse’s name on the deed or outstanding liens are identified, the attorney works to resolve them or may advise terminating the contract. They also assess governmental regulations, easements, or restrictions that could impact the property’s use, ensuring the buyer is fully informed.
3. Inspection and Repair Negotiations: The attorney review period often overlaps with the home inspection timeframe. If an inspection reveals defects, the buyer’s attorney can negotiate repairs, request a closing credit, or, in extreme cases, recommend canceling the contract. For instance, if significant structural issues are uncovered, the attorney may propose modifications to address these concerns or advise the buyer to walk away.
4. Financing and Contingencies: Attorneys verify that financing terms, such as mortgage contingencies, align with the buyer’s needs. They ensure the contract specifies the type of mortgage (e.g., fixed, FHA, or VA), the loan amount, and the interest rate cap, allowing the buyer to exit the deal without penalty if financing falls through.
   
5. Earnest Money Protection: The attorney review period is a “penalty-free” window during which either party can terminate the contract without losing earnest money, provided the decision is based on valid contractual concerns (not the purchase price). This protection is critical for buyers, as earnest money could be forfeited if the contract is canceled after the review period without meeting contingency conditions.

Negotiation and Outcomes

The attorney review period is inherently a negotiation phase. After reviewing the contract, an attorney may approve it as is, reject it, or propose modifications. Proposed changes are sent to the other party’s attorney, who can accept, reject, or counter with additional proposals. This back-and-forth aims to reach a mutually acceptable agreement. If the parties cannot resolve disputes within the five-day period (or an extended timeframe), either party may terminate the contract by serving written notice, resulting in the return of the buyer’s earnest money and the property being placed back on the market. In most cases, however, attorneys work collaboratively to address concerns, and the contract proceeds to the next stages, such as finalizing financing or preparing for closing.

Importance of Timely Action

Timeliness is critical during the attorney review period. Buyers and sellers must engage an attorney as early as possible, ideally before signing the contract, to maximize the review window. Missing deadlines can weaken a party’s bargaining position or bind them to unfavorable terms. For example, if a buyer fails to deliver the contract to their attorney until the fourth day, the attorney has only one day to review and propose changes, limiting their effectiveness. Additionally, real estate agents, while valuable for market expertise, cannot provide legal advice, making the attorney’s role indispensable.

Unique Aspects of Illinois

Illinois is considered an “attorney-review state,” a distinction not shared by all states, such as Indiana, where no mandated review period exists. This practice reflects the state’s recognition of the legal complexities in real estate transactions and the need for professional oversight. The attorney review clause, often found in Paragraph 10 of the Multi-Board 7.0 contract, is a standard feature in Illinois residential contracts, underscoring its importance. Unlike other contracts, real estate agreements in Illinois remain conditional during this period, allowing flexibility that is not typically available in other legal agreements.

RESIDENTAL REAL ESTATE ATTORNEY JOSEPH S. ANGELILLO

The attorney review period in Illinois residential real estate transactions is a vital mechanism for ensuring fair and legally sound contracts. By providing a five-day window for attorneys to review, modify, or terminate agreements, it protects buyers and sellers from unforeseen issues and fosters informed decision-making. From scrutinizing title issues to negotiating inspection repairs, attorneys play a pivotal role in safeguarding their clients’ interests. For anyone buying or selling a home in Illinois, engaging a qualified real estate attorney early and understanding the attorney review process is essential to navigating this complex transaction successfully. 

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