Allen Markel, REALTOR® · Texas Premier Realty

General

Do I need an attorney to buy or sell a house in Texas?

Answered by Allen Markel, REALTOR®, Texas Premier Realty ·

Short answer

No. An attorney is not required to buy or sell a home in Texas. Texas real estate agents use contract forms promulgated by the Texas Real Estate Commission, and the title company acts as escrow agent and issues title insurance. But agents cannot give legal advice: Paragraph 23 of the TREC contract says so and tells you to read it carefully and consult an attorney before signing. If your situation needs a lawyer, such as an estate, a divorce or a title problem, your REALTOR will tell you to get one.

In Texas the parties commonly sign the TREC promulgated resale contract prepared by their agents. The contract names an escrow agent, usually a title company, that holds the earnest money and option fee and coordinates the closing (Paragraphs 5 and 18). The seller furnishes a title commitment, and at closing the seller signs a general warranty deed (Paragraphs 6B and 9B(1)). The title company records the deed.

Nothing in the contract requires either party to have an attorney. TREC's own form is explicit that it is 'intended for use only by trained real estate license holders' and that it is not intended for complex transactions. That sentence is the reason your agent will stop and say get a lawyer when something is unusual. Lenders and title companies also have their own requirements, so a transaction can involve several parties, but none of them is required to be a lawyer for you.

Paragraph 23 of TREC Form 20-19 states that TREC rules prohibit real estate brokers and sales agents from giving legal advice, and tells the parties to read the contract carefully; it also has blanks for each side's attorney. Paragraph 11 says agents may not add to, delete or modify contract provisions unless drafted by a party or the party's attorney.

The Texas Government Code defines the practice of law to include giving advice or rendering services that require legal skill or knowledge, such as preparing a contract or other instrument whose legal effect must be carefully determined (Sec. 81.101(a)). That is the boundary an agent respects. Explaining what a standard form says is one thing; advising you how a court would treat your situation is another.

Typical times to bring in an attorney: a probate or heirship question, a divorce, a title defect on the commitment, a boundary or easement dispute, or any change to the contract that goes beyond filling in the blanks.

Common follow-up questions

Does the title company act as my attorney?

No. The title company is the escrow agent under the contract and issues title insurance. Paragraph 18 says the escrow agent is not a party to the contract. It does not give legal advice to either side.

Can my agent write special terms into the contract?

Only informational items. Paragraph 11 of TREC Form 20-19 says agents may not add to, delete or modify provisions unless drafted by a party or a party's attorney.

Should I still consider a Texas attorney?

That is your call, and TREC's Paragraph 23 tells you to consult one before signing if you have questions. Estates, divorces and title defects are the usual reasons.

Sources

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Answers describe transactions and public data. They are not legal, tax or financial advice.