Real Estate

Commercial Real Estate Transactions

We are an experienced full service commercial real estate law firm that can assist you with a wide range of transactions, from the purchase of raw land to the sale of a developed property and everything in between. We can help you take your project from start to finish.

If you are considering buying, selling, leasing, or investing in commercial real estate, you should consult our firm to ensure that your transaction is structured in the most beneficial way.

Our firm assists client with the following commercial real estate transactions:
  • Purchase and Sale Agreements
  • Commercial Mortgage Financing
  • Leases
  • Brokerage Agreements
  • Construction Contracts
  • Assignments of Contract and Lease Rights
  • Title Objections and Clearance
  • Section 1031 Tax Free Exchanges
Residential Real Estate Transactions

Buying or selling a home is probably the most significant financial transaction that anyone undertakes in his or her lifetime. While this can be an exciting time, without the proper legal guidance, the process can be frustrating, overwhelming and more expensive than necessary. Even if there are no obvious disagreements between the Buyer and Seller, it is advisable for each party to enter into real estate transactions with their own attorney who can help steer them away from common pitfalls and make the transaction an enjoyable experience.

We represent Buyers, Sellers and Financial Institutions in connection with everything from drafting a Purchase and Sale Contract through obtaining the final Title Insurance Policy. We offer our clients broad based real estate legal advice and representation in the following transactions:
  • Real Estate Purchase and Sale Transactions
  • "Short Sales" and Bank Owned Properties (REO's)
  • Refinancings
  • Construction Contracts
  • Leases
  • Mortgage-Based Financing
  • Section 1031 Exchanges
Real Estate Disputes and Litigation

Whether you are selling or buying a single or multi-family family residential, investment or commercial property, The Law Offices of Donald C. Battaglia, Ltd. can meet all of your needs. We want to make your real estate process a success, and protect you from the complications that can arise with any real estate transaction. We offer free consultations to prospective clients.

FAQ – Residential Real Estate Transactions

What should I be looking for before signing an offer?
The offer to purchase is the first step in negotiating the terms under which a home is purchased. Once the seller accepts a buyer's offer, a binding contract is formed that may be modified only under certain conditions. As with any legal document, you should read the offer carefully. Make sure there is an attorney review contingency, which allows the buyer and seller to review the contract with their respective real estate lawyers who may change certain terms if necessary. This review period should be for no less than five business days. Under a typical offer to purchase, the attorney can request modifications to any term of the contract except: a) the purchase price, and b) the closing date. It is important, therefore, that these terms are acceptable to you before signing.
What can I expect to find in an offer to purchase?
Besides the offering price and closing date, an offer to purchase should cover both the basic terms of the sale as well as conditions that may be applicable to your specific needs. Besides the purchase price, closing date and attorney review contingency, the following are examples of basic terms that every contract should contain:
  1. An accurate description of the land, buildings and furnishings that are included in the offer. For instance, are items such as the microwave, the outdoor swing set, the living room drapes, the storage shed in the garage, and the like included?
  2. The date that the buyer can take possession (which may or may not be the closing date).
  3. The seller's obligation to provide good, marketable title, backed by a title insurance policy.
  4. The need to provide a recent survey of the property and at whose expense.
  5. How the property taxes will be allocated between the parties.
  6. A reasonable period of time to have the property professionally inspected.
  7. The consequences and recourse if the buyer or seller defaults.
The contract should also provide for conditions that address your particular concerns. These may include the following:
  1. Assurances that there are no restrictions on how the buyer intends to use property.
  2. Contingencies on matters such as the availability of financing on acceptable terms or the sale of the house that the buyer presently owns.
  3. Whether special financing sources such as VA or FHA will be used.
  4. Whether the seller will be obligated to contribute to the buyer's closing costs.
The above are only examples of the many issues that can arise in the negotiation of the purchase and sale of a home. Make sure your attorney reviews them with you until you have a good understand of the contract.
Does the purchase of a condominium present any additional concerns?
A condominium is a form of property ownership in which each owner holds title to his or her individual unit, plus a fractional interest in the common areas of the multi-unit project. A condo owner may share the common areas with as few as one or two other owners, or as many as a hundred or more. When buying a condominium, therefore, it is important to understand not only what you are buying, but also what you are buying into. Illinois law requires a condo association to provide a potential buyer with information on items such as the rules and regulations of the association, its financial condition and operating budget, insurance coverage, how many units are owner-occupied, liens and judgments against the property, and so on. However, this information must be specifically asked for, so make sure your contract is contingent upon a satisfactory review of the documents you will be provided.
What happens to a buyer's earnest money if the sale does not go through?
Earnest money is the deposit that a buyer gives to the seller or his agent upon the signing of the offer to purchase to show that the buyer is serious about buying the house. If the sale goes through, the earnest money is applied against the purchase price. If the sale does not go through, the earnest money will be forfeited or lost unless the offer to purchase expressly provides that it is refundable.
What is a title examination?
A title examination is a study of the records related to the ownership history and any other matters of record that affect the property. Liens, mortgages, judgments, easements, restrictions of use, are all examples of matters that a purchaser needs to be aware of before taking title to the property. When a commitment for title is ordered, a title examiner (a title company employee who often is a lawyer) examines the title history to determine who is the actual owner of the land, whether there are any defects in or claims against the ownership, and whether any action is needed to make sure the purchaser obtains good record title to the property at closing.
What is title insurance?
"Title Insurance" is just that: a policy that insures the status of title in the name of the buyer as the new owner of the property. Title insurance policies are issued by title insurance companies. The policy protects a buyer against financial loss as a result of "defects" in the title, as well as the cost of defending the title in court. Before issuing a policy, the title company searches and examines documents related to the ownership of and any items affecting the property. It provides a source of indemnification to the named insured if he or she is damaged by a negligent or bad title search or examination and also from hidden defects that would not be discovered in a title search. For instance, a title defect resulting from a forgery would not be revealed in a search or examination of the public records but would be covered by the title insurance policy. Prior to issuance of the title insurance policy a title commitment will be prepared. It contains a list of items that either the seller must satisfy in order for the title company to issue a "clear title," or they will be excluded from coverage. Items such as the seller's mortgage will be "waived" by the title company closing agent when the former mortgage is paid at the closing and will not appear when the policy is issued.
Should I work with a real estate agent? A real estate lawyer? Others?
A home purchase or sale is one of the single largest financial transactions most consumers make in a lifetime. You should approach the temptation to "do it yourself" with the same caution as if you were considering repairing your own transmission or removing your own appendix. The right professionals will not only help you with the purchase or sale of a home and offer direction on what you should consider, but can potentially save you many times their fees by avoiding costly mistakes and providing the information you need to make informed decisions.
  • A real estate agent can advise you on the marketplace, how much to list your home for or what you should be paying for it. However, under Illinois law, a real estate agent cannot render legal advice on your purchase. For that you will need a real estate attorney.
  • A real estate attorney owes an undivided duty of loyalty to you, and provides objective advice. Buying or selling a house involves significant legal rights and obligations, and your attorney can explain the terms and help you understand what you are signing. An attorney will also make sure you get what you believe you are getting, be it the terms of your selling price, your loan, what's included with the sale price, or the representations on the condition of the house. The attorney will prepare the documents required for a seller to convey the home, and help guide the buyer at closing through the stack of documents that the buyer will be asked to sign. The attorneys will also check to be sure that there is good title to the property to be conveyed.
  • A professional home inspector is engaged during the "home inspection contingency" period of the contract. The inspector will go through the home inside and out, and provide a written report on the condition of the home's structural components, its mechanical systems and appliances. Knowledge of potential maintenance issues, defective conditions and life expectancies of major components will enable you to evaluate the home's true worth and can provide a basis of further negotiation with the seller.
  • A mortgage loan officer can help you determine what kind and amount of mortgage payment you can afford and alert you to financing options that can make a home more affordable. A loan officer can also help you pre-qualify for a real estate loan which may enhance your bargaining position with the seller.
  • A homeowner's insurance agent can provide information on the amount, type and cost of coverage you'll likely need. You will be required to provide proof of insurance before your lender will allow you to close on the property.
How should a buyer take title to the property?
If you are purchasing the property alone, title is typically taken in the name of only one individual grantee (you), and is freely transferable. If more than one individual is purchasing the property, there are several ways title can be held.

Tenants in Common. Ownerships held as tenants in common are freely transferable by each owner ("tenant"). There is no right of survivorship in the surviving tenants upon one tenant's death. Equal percentage ownership is presumed unless the deed specifically states otherwise (for example, unless the deed states otherwise, if there are three grantees, each grantee will own a one-third interest).

Joint Tenancy. Title can be taken in multiple names under this approach. A joint tenant owns an undivided equal share of the property, with right of survivorship. Upon the death of a joint tenant, that person's interest passes equally to the survivors. Unlike tenancy in common, a joint tenant cannot will his interest to another party. If a joint tenant sells his interest, the joint tenancy is broken and the property is automatically owned as tenants in common.

Tenancy by the Entireties. Title can be taken as tenants by the entireties only by a validly married husband and wife in a property used as their primary residence. Like joint tenancy, there is a right of survivorship with a tenancy by the entireties: upon death of one spouse, the property automatically becomes the sole property of the survivor. Unlike joint tenancy, however, under Illinois law a judgment creditor cannot force the sale of the home to satisfy a judgment against only one spouse. For a married couple considering taking title in joint tenancy, tenancy by the entireties is typically the way to go.

Title can also be taken In Trust. Under this approach, legal title is transferred to a trustee who holds it under the direction and for the benefit of the purchaser. An attorney should be consulted to see whether this form of ownership is appropriate for your circumstances.
Should I consider buying a home in foreclosure?
Purchasing a home in foreclosure often appears to be a good value, but factors outside of the price need to be considered:
  • The purchase of a foreclosure often is a "cash only" sale
  • Can you view the actual condition of the home inside and out before placing a bid? The home may be in need of extensive repairs driving up the actual cost of the home.
  • Are there liens for taxes or mechanics liens that the winning bidder will be responsible for?
  • Is there a redemption period for the previous owners? If so, how long do they have the ability to buy the house back before you can move in?
What is a "Short Sale?"
A short sale is the sale of real estate where the owner owes more to the bank than the property is worth. Homeowners who are experiencing a financial hardship often turn to a short sale to avoid foreclosure or bankruptcy. On the other end of the spectrum many investors are anxious to buy short sale properties because they can be bargains.

If you are a homeowner and think a short sale might be right for you, it is critical you work with the right professionals. Frequently lenders ask homeowners to sign a promissory note or specifically agree to liability after the transaction closes. Closing a short sale on these terms actually makes the homeowner worse off. Only a qualified real estate and short sale attorney can give you legal advice and fully represent your interests. Also, only real estate attorneys experienced in the short sale process are prepared to request and submit the proper documentation and negotiate with the seller's lender to increase the chances that the short sale will be approved.

If you are considering purchasing a short sale, understand that a short sale usually means that the home has decreased in value since the last sale, and may be in a declining market. Short sale homes are sold "as is" without any representations or warranties from the seller, so a thorough inspection is advisable. It can also take much longer to close a short sale transaction because the seller's lender must approve all aspects of the deal. Since there is no guaranty of when, if ever, an approval will be obtained, a buyer must be certain that the contract allows for a termination if an approval is not given within a certain time frame.

Whether you are selling your house as a short sale, or you are interested in buying a short sale home, The Law Offices of Donald C. Battaglia, Ltd. can meet all of your needs. We want to make your short sale process a success, and protect you from the complications that can arise with short sales. We offer free consultations to prospective clients.
 

FAQ – Buyers

What questions should I ask when looking at homes?
Many of your questions will focus on potential problems and maintenance issues. Illinois law requires residential sellers to submit a disclosure report to provide prospective buyers with information about material defects in the home that may not be discernable in a normal inspection. Review this carefully and fully investigate any items that the seller checks "yes" to. You may also want to ask the seller whether anything need to be replaced. Does anything require ongoing maintenance (e.g., HVAC, appliances)? Ask about the neighborhood, focusing on quality of life issues. Your real estate agent can help you find out about local schools, community events, and other developments in the area. Ask questions until you understand all of the information the seller or real estate agent has given. Organize your thoughts by making a list of questions ahead of time to compare all of the information you receive.
I found a home, and my agent is preparing an offer. What should I be looking for before signing?
The offer to purchase is the first step in negotiating the terms under which you will be buying your new home. Once the Seller accepts your offer, a binding contract is formed that may be modified only under certain conditions. As with any legal document, you should read the offer carefully. Make sure there is an attorney review contingency, which allows you to review the contract with your real estate lawyer who may change certain terms if necessary. This review period should be for no less than five business days. Under a typical offer to purchase, the attorney can request modifications to any term of the contract except: a) the purchase price, and b) the closing date. It is important, therefore, that these terms are acceptable to you before signing.
What can I expect to find in an offer to purchase?
Besides the offering price and closing date, an offer to purchase should cover both the basic terms of the sale as well as conditions that may be applicable to your specific needs. Besides the purchase price, closing date and attorney review contingency, the following are examples of basic terms that every contract should contain:
  1. An accurate description of the land, buildings and furnishings that are included in your offer. For instance, are items such as the microwave, the outdoor swing set, the living room drapes, the storage shed in the garage, and the like included?
  2. The date that you can take possession (which may or may not be the closing date).
  3. The Seller's obligation to provide good, marketable title, backed by a title insurance policy.
  4. The need to provide a recent survey of the property and at whose expense.
  5. How the property taxes will be allocated between the parties.
  6. A reasonable period of time to have the property professionally inspected.
  7. The consequences and recourse if the buyer or seller defaults.
The contract should also provide for conditions that address your particular concerns. These may include the following:
  1. Assurances that there are no restrictions on how you intend to use property.
  2. Contingencies on matters such as the availability of financing on acceptable terms or the sale of the house that you presently own.
  3. Whether special financing sources such as VA or FHA will be used.
  4. Whether the seller will be obligated to contribute to your closing costs.
The above are only examples of the many issues that can arise in the negotiation of the purchase of your new home. Make sure your attorney reviews them with you until you have a good understand of the contract.
Does the purchase of a condominium present any additional concerns?
A condominium is a form of property ownership in which each owner holds title to his or her individual unit, plus a fractional interest in the common areas of the multi-unit project. You may share the common areas with as few as one or two other owners, or as many as a hundred or more. When buying a condominium, therefore, it is important to understand not only what you are buying, but also what you are buying into. Illinois law requires a condo association to provide a potential buyer with information on items such as the rules and regulations of the association, its financial condition and operating budget, insurance coverage, how many units are owner-occupied, liens and judgments against the property, and so on. However, this information must be specifically asked for, so make sure your contract is contingent upon a satisfactory review of the documents you will be provided.
What happens to my earnest money if the sale does not go through?
Earnest money is the deposit that you give to the seller or his agent upon the signing of the offer to purchase to show that you are serious about buying the house. If the sale goes through, the earnest money is applied against the purchase price. If the sale does not go through, the earnest money will be forfeited or lost unless the offer to purchase expressly provides that it is refundable.
What is a title examination?
A title examination is a study of the records related to the ownership history and any other matters of record that affect the property. Liens, mortgages, judgments, easements, restrictions of use, are all examples of matters that a purchaser needs to be aware of before taking title to the property. When a commitment for title is ordered, a title examiner (a title company employee who often is a lawyer) examines the title history to determine who is the actual owner of the lane, whether there are any defects in or claims against the ownership, and whether any action is needed to make sure the purchaser obtains good record title to the property at closing.
What is title insurance and do I need it?
"Title Insurance" is just that: a policy that insures the status of title in your name as the new owner of the property. Title insurance policies are issued by title insurance companies. The policy protects you against financial loss as a result of "defects" in the title, as well as the cost of defending the title in court. Before issuing a policy, the title company searches and examines documents related to the ownership of and any items affecting the property. It provides a source of indemnification to the named insured if he or she is damaged by a negligent or bad title search or examination and also from hidden defects that would not be discovered in a title search. For instance, a title defect resulting from a forgery would not be revealed in a search or examination of the public records but would be covered by the title insurance policy. Prior to issuance of the title insurance policy a title commitment will be prepared. It contains a list of items that either must be satisfied in order for the title company to issue a "clear title," or they will be excluded from coverage. Items such as the seller's mortgage will be "waived" by the title company closing agent when the former mortgage is paid at the closing and will not appear when the policy is issued.
Should I work with a real estate agent? A real estate lawyer? Others?
A home purchase is one of the single largest financial transactions most consumers make in a lifetime. You should approach the temptation to "do it yourself" with the same caution as if you were considering repairing your own transmission or removing your own appendix. The right professionals will not only help you with the purchase of a home and offer direction on what you should consider, but can potentially save you many times their fees by avoiding costly mistakes and providing the information you need to make an informed decision.
  • A real estate agent can advise you on the marketplace and what is available in your price range, as well as help you to consider aspects of a home which may be important to you (such as nearby schools, shopping, and commuting options). However, under Illinois law, a real estate agent cannot render legal advice on your purchase. For that you will nee a real estate attorney.
  • A real estate attorney owes an undivided duty of loyalty to you, and provides objective advice. Buying a house involves significant legal rights and obligations, and your attorney can explain the terms and help you understand what you are signing. An attorney will also make sure you get what you believe you are getting, be it the terms of your loan, what's included with the sale price, or the seller's representations on the condition of the house. The attorney will help guide you at closing through the stack of documents that you will be asked to sign, and check to be sure that the conveyance documents have been properly prepared and actually convey good title to the property to you.
  • A professional home inspector is engaged during the "home inspection contingency" period of the contract. The inspector will go through the home inside and out, and provide a written report on the condition of the home's structural components, its mechanical systems and appliances. Knowledge of potential maintenance issues, defective conditions and life expectancies of major components will enable you to evaluate the home's true worth and can provide a basis of further negotiation with the seller.
  • A mortgage loan officer can help you determine what kind and amount of mortgage payment you can afford and alert you to financing options that can make a home more affordable. A loan officer can also help you pre-qualify for a real estate loan which may enhance your bargaining position with the seller.
  • A homeowner's insurance agent can provide information on the amount, type and cost of coverage you'll likely need. You will be required to provide proof of insurance before your lender will allow you to close on the property.
How should I take title to the property?
If you are purchasing the property alone, title is typically taken in the name of only one individual grantee (you), and is freely transferable. If more than one individual is purchasing the property, there are several ways title can be held.

Tenants in Common. Ownerships held as tenants in common are freely transferable by each owner ("tenant"). There is no right of survivorship in the surviving tenants upon one tenant's death. Equal percentage ownership is presumed unless the deed specifically states otherwise (for example, unless the deed states otherwise, if there are three grantees, each grantee will own a one-third interest).

Joint Tenancy. Title can be taken in multiple names under this approach. A joint tenant owns an undivided equal share of the property, with right of survivorship. Upon the death of a joint tenant, that person's interest passes equally to the survivors. Unlike tenancy in common, a joint tenant cannot will his interest to another party. If a joint tenant sells his interest, the joint tenancy is broken and the property is automatically owned as tenants in common.

Tenancy by the Entireties. Title can be taken as tenants by the entireties only by a validly married husband and wife in a property used as their primary residence. Like joint tenancy, there is a right of survivorship with a tenancy by the entireties: upon death of one spouse, the property automatically becomes the sole property of the survivor. Unlike joint tenancy, however, under Illinois law a judgment creditor cannot force the sale of the home to satisfy a judgment against only one spouse. For a married couple considering taking title in joint tenancy, tenancy by the entireties is typically the way to go.

Title can also be taken In Trust. Under this approach, legal title is transferred to a trustee who holds it under the direction and for the benefit of the purchaser. An attorney should be consulted to see whether this form of ownership is appropriate for your circumstances.
 

FAQ – Sellers

Do I really need an agent?
Most home sellers hire real estate agents to list and sell their homes. Most of those who do not are known as For Sale By Owners, or FSBOs. They market and sell their homes themselves. However, a small number of people sell without marketing their homes. They include homeowners who transfer property to family members or landlords who directly offer tenants the first right to purchase property before they place it for sale on the market.

In the end, most FSBOs eventually hire an agent because the agent will handle all the details of a successful home sale (including the contract, forms, and disclosure statements) and expose the home to the widest range of prospective buyers through the local Multiple Listing Service (MLS).
How do I find the right agent for me?
To begin with, think local. Select someone who is very familiar with your neighborhood and the properties for sale in it. Then, if you are selling, say, a condominium, choose an agent with expertise selling condos to potential homeowners.

Because you will want the widest possible exposure for your home, you also will want a real estate firm that works with other agencies to get your property sold. The Multiple Listing Service (MLS) used by Realtors, licensed members of the National Association of Realtors, is still the most common and effective form of cooperation used today.

Beyond these parameters, select an agent who is competent, efficient, and ethical.
What questions should I ask an agent interested in selling my home?
When you interview a potential, grill them about the following:
  • The worth of your home. The agents should inspect the home and prepare a written comparative market analysis.
  • Marketing plans. These are a must. Make sure they include the local Multiple Listing Service (MLS) which gives your home maximum exposure to all local agents, and Internet marketing through the broker's web site, such as the one you are currently viewing.
What is the most common type of contract for listing properties?

The exclusive right to sell. It gives the real estate broker the exclusive right to sell your home during the term of the listing.
How do I set the selling price?
A key part of the marketing plan is setting the list price. If a home is priced too low, it may cost you money. If a home is priced too high, potential buyers may be scared away. To determine the best asking price review the cost of recently sold homes, evaluate the competition and study marketplace trends. Century 21 Sussex & Reilly Sales Associates are trained to use this information to help you reach the right asking price. It is also helpful to discuss other terms and conditions, such as timing and items that can be included with the sale of the home. Both of these can make your home more attractive to potential buyers.
What should I do to get my home ready to sell?
Start with a good cleaning, then eliminate any clutter, add a fresh coat of paint and tidy up the yard. Talk to your real estate professional about other tips that can help boost a home's curb appeal and impress potential buyers once they're in the door. One way to make a home more attractive is to purchase a Home Protection Plan. This insurance protects you, the seller, from paying repair or replacement costs of major items during the listing period. It also protects the buyer during their first year of homeownership.

In addition, make sure you are aware of all the federal, state, and local disclosure laws. This information can be obtained from your Century 21 Sussex & Reilly agent.
Do I have to disclose information about my home?
Disclosure could protect you from a lawsuit. In Illinois, home sellers must fill out a Residential Real Property Disclosure Report, disclosing information about material defects in their home that they are aware of. The report creates legal obligations on the seller, so an attorney should be consulted if there are any questions on whether a specific condition of the home must be listed on the form.
What if I am not happy with the listing agent and want to terminate the contract?
Typically, unhappiness alone is not a legal reason to terminate a valid home sale-listing contract. Legally, to cancel a listing, you must be able to prove the agent's lack of "due diligence." This means the agent isn't taking the normal steps to properly market your home, such as putting your listing into the Multiple Listing Service (MLS), advertising on the Internet, and other reasonable efforts that are customary in the community.

If your home is overpriced, perhaps you need to consider reducing the price to spark buyer interest. Otherwise, you may need to meet with the listing agent and his or her managing broker to discuss the problem. If the agent is doing an awful job, you might suggest the listing be transferred to a more effective agent within the same brokerage firm.
I have an offer – now what?
A buyer has made an offer - now it is time to negotiate. Rely on your real estate professional to guide you through this process. He or she will help you arrive at an acceptable price, terms and conditions. Once you have accepted an offer, help keep the deal together by meeting deadlines and criteria, including home inspections, appropriate buyer visits, scheduled deposits and other steps. In fact, during this period there may be a renegotiation of the accepted offer price depending on the outcomes of these visits. As the closing nears, you may also need to perform repairs or do additional work to the house as agreed upon in your contract. In addition, you will need to have the house "broom clean" prior to the closing so that the buyer can complete a final walk through. Once the money has exchanged hands and all the papers signed it's time to hand over the keys and concentrate on your next big project - getting YOUR new home in order.
How do I respond to a low-ball offer?
Let your agent know it is too low to warrant a counteroffer and that you are willing to negotiate but only once a more reasonable offer is made. Ask the agent if the buyer was shown comparable market values of similar homes that have recently sold in your area; and ask if the buyer was ever properly qualified. You do not have to settle for less if you are realistic about your chances of getting more.
 
Law Offices of Donald C. Battaglia, Ltd.