04/19/2026
Do you know who represents you? It’s an honest question and one that many people are often confused about. When you’re purchasing a home this area can become more of a shade of grey than black and white. Many loan officers and real estate agents will ask the closing attorney to “review” the purchase and sale agreement for the buyer, but does “review” mean represent? It’s important to understand that the closing attorney represents the mortgage lender in the transaction. It’s the responsibility of the closing attorney, both professionally and ethically to zealously represent the lender. So while it’s technically not a conflict of interest in Massachusetts for a closing attorney to represent both the lender and a buyer in a purchase transaction, could it be? And when your loan officer or real estate agent tells you “Good news. I spoke to the closing attorney and she told me that she would review the purchase and sale agreement for you free of charge”, does that mean the closing attorney is representing you as well as the lender? This is why attorneys are required to have clients sign fee agreements. These agreements don’t just deal with what the attorney is going to charge you but it also outlines the scope of their representation. Be sure to read the agreement carefully and ask questions. If you’re not presented with a fee agreement after you’ve been told the closing attorney has agreed to review your purchase and sale agreement or even represent you than you should be asking for one. You need to know if the closing attorney has a fiduciary duty to you or not, and if they don’t is it really in your best interest to have them review the agreement on your behalf, or alternatively hire your own attorney to represent your interest in the transaction.
What about a refinance transaction? I spoke to a borrower recently who in the middle of our conversation stopped me and said “But you have a fiduciary duty to me”. I immediately corrected him and informed him that in a refinance transaction the closing attorney represents the mortgage lender, not the borrower. This can become tricky sometimes. Massachusetts is a strict marketable title state. If you’re the borrower in a refinance transaction then it’s your responsibility to present a clear and marketable title to the new lender. When closing attorney examines your title as we are required to do here in Massachusetts and finds an undischarged mortgage, an ex*****on, or perhaps a tax lien or mechanic’s lien, you have clouds on your title that must be rectified before your new loan can be closed. The closing attorney can assist you in rectifying those problems, but the responsibility lies with you. For example if I find an undischarged mortgage on your property from many years ago I can advise you that a discharge tracking service would be the best and quickest option to track it down. If you tell me that you don’t want to pay the discharge tracking service fee that’s fine, but you’ll have to come up with an alternative way to get that discharge for recording before we can close. Another example would be if I discovered an ex*****on on your title. You probably wouldn’t even know what that was. An example would be if you ran up your Visa Card to $20,000 and stopped making payments on it. Visa would then sue you, and more likely than not get a judgment against you for $20,000, maybe more. In Massachusetts that judgment is good for 20 years. That’s sounds great for Visa, but a judgment alone has no teeth. The ex*****on is the teeth. The attorney for Visa would then record an ex*****on at the registry of deeds that would act as a lien on your property for the amount owed in the judgment for a period of 6 years and 90 days. If I present you with this information and you tell me you don’t want to payoff the ex*****on, I’m very sorry to tell you but you won’t be closing on your new loan.
So you see it’s very important to ask questions about who represents you and what duty each of the attorneys has to who before the transaction. Loan officers, real estate agents and others who play a role in real estate transactions often get complacent and think of the loan closing process as just part of any old business transaction. In Massachusetts it is not. The landmark 2011 Massachusetts Supreme Judicial Court Case REBA v. NREIS clarified for all to see that the closing of a real estate transaction in Massachusetts is the practice of law, and delineated exactly what parts of the process amount to the practice of law and what parts are administrative in nature and are therefore not the practice of law. Spoiler alert, the majority of the closing process for any real estate transaction, be it a simple HELOC or equity loan, a refinance or a purchase transaction is in fact the practice of law. Do not be afraid to ask who the settlement agent is for your transaction. If it’s not a licensed Massachusetts Attorney than you may be involved in a transaction where the players are engaged in the unauthorized practice of law, and / or fraud.
Be diligent. Be careful.
