Buying a home is one of the most significant financial decisions you will ever make. In Massachusetts, the home-buying process moves quickly, and buyers must be fully prepared before submitting an offer. While most buyers select their closing attorney after their offer has been submitted, it is critical to select your closing attorney before making an offer.

In Massachusetts, a real estate closing attorney must be a part of the transaction by law. However, many buyers make the mistake of waiting until after their offer is accepted to find legal representation. This can lead to costly mistakes, unnecessary stress, and even complicated legal disputes. Here’s why working with a closing attorney before you submit an offer is paramount to protecting yourself both legally and financially.

Your Offer is a Legally Binding Contract Upon Acceptance

In Massachusetts, an offer to purchase a home is not just a formality—it is a legally binding contract upon the seller’s acceptance. This means that the terms outlined in your offer (such as purchase price, contingencies, and closing date) are legally binding. If you later try to renegotiate or back out of the deal without a valid reason, you will forfeit your earnest money deposit, or worse, be subject to legal action.

Many buyers falsely operate under the assumption that the offer is merely a placeholder, to which the terms of the deal can be renegotiated in the Purchase and Sale (P&S) executed later. This is legally incorrect and operating under this assumption can hold significant legal ramifications. Attempting to change the terms of your original offer in the P&S will be a change to the material terms of the deal, and accordingly a breach of contract. It is imperative that you consult with an experienced real estate attorney, such as those at Lane, Lane & Kelly, before you submit your offer. Your attorney can review your offer and ensure that:

• Your offer properly aligns with your expectations.
• Your interests are adequately protected.
• Your contingencies (such as home inspection, financing, appraisal, etc.) are properly drafted to provide you with a legally valid avenue to terminate the deal upon a contingency failing to be met.
• These contingencies also must be drafted properly to ensure that your initial deposit is protected in the event of the deal falling through. For a full overview of how to protect your earnest money deposit, please read our legal blog post here.
• You are made fully aware of your legal obligations set forth under the contract.

A History of Massachusetts Case Law

The holding that an offer to purchase a home is a legally binding contract upon acceptance stems from the case, McCarthy v. Tobin, 429 Mass. 84 (1999). In McCarthy v. Tobin, the plaintiff, McCarthy, was a prospective buyer who submitted an offer to purchase a property from the defendant, Tobin. The offer was a standard, pre-printed real estate form generated by the Greater Boston Real Estate Board that included material terms such as price, a description of the property, deposit requirements, and a closing date. One of the primary issues in the case rested on the fact that the offer contained the provision, “Subject to a Purchase and Sale Agreement satisfactory to Buyer and Seller." Tobin, the seller, initially accepted the McCarthy’s offer, but a few days later they accepted a second offer from a different buyer. McCarthy brought suit to enforce the offer as a contract, seeking specific performance for the sale of the property. The case rested on whether the McCarthy’s original offer constituted a binding, legally enforceable contract. Tobin argued that it was not, due to the provision that the offer was subject to the execution of a P&S to be signed at a later date. McCarthy argued that it was, because both parties expressed a clear intention to be bound by the terms of the offer, citing that the execution of the P&S was, “merely a formality.”

The Massachusetts Supreme Judicial Court held that the signed offer constituted a binding contract. The Court ruled that a written offer to purchase, when sufficiently detailing material terms such as the price to paid, the closing date, a description of the property to be bought, and how long the offer would remain open, is a firm offer. Once such offer is signed by both parties, it reflects the party’s intention to be bound, and subsequently constitutes a binding legal contract. This is true even if the offer contemplates the later execution of a formal P&S Agreement.

This is an important holding for both buyers and sellers to be aware of. Almost all offers to purchase real estate in Massachusetts state that the terms will be formalized through a P&S Agreement at a later date, or some language to that effect. This does not, however, make the offer a mere placeholder for the P&S. If you are serious about an offer, as soon as it is accepted by the seller, you have both expressed a clear, contractual intent to be bound by the terms of such offer, whether a P&S is executed later or not. After the offer is accepted, neither the buyer nor the seller can back out of the deal at that point without legal consequences.

This case underscores the importance of utilizing a real estate attorney prior to submitting your offer on a new home. Your attorney can carefully draft and review your offer to ensure it complies with terms you are comfortable with. Because your offer, if accepted, will create a binding obligation, it is always advisable to seek legal counsel before your offer is submitted. Working with your real estate attorney before submitting the offer also provides continuity throughout the entire buying process. Upon your offer being accepted, you will continue to work with your attorney throughout the closing process. This ensures your attorney is familiar with the transaction from beginning to end, and can continue to advise you all the way up until you are handed the keys to your new home.

In a more recent case, Ritter v. Johnson, a Federal Judge ruled that a written offer to purchase a vacation home on Martha’s Vineyard constituted a legally binding contract and is enforceable against the property owner, despite the owner’s claim that the offer to purchase lacked material terms. In that case, the owner of the property executed an offer to purchase with potential buyers, and attempted to withdraw from the deal one month later after experiencing seller’s remorse.

The Buyers sued the Seller, claiming that the signed offer to purchase was a legally binding contract and enforceable against the owner. The Seller contended that because the parties did not come to an agreement on his family using the property post-closing for a family vacation, that the offer to purchase was missing material terms and therefore, unenforceable. After reviewing the record, Judge Denise Casper held that the Seller failed to show that the use of the property post-closing was a material condition of the contract, and therefore the offer to purchase was legally enforceable. Judge Casper reasoned that because there was nothing in the evidential record or in the signed offer to purchase regarding the Seller’s post-close use and occupancy of the property being essential to the deal, that it was not a material term that would invalidate the contract.

Massachusetts Real Estate Laws Are Complex—Why You Need an Attorney Early

Massachusetts real estate law is unique, and the process differs from many other states. Most importantly, Massachusetts law requires that an attorney be involved in the closing process. Meaning that in Massachusetts, you cannot purchase a home without the help and guidance of a real estate attorney. Despite this, many homebuyers wait to contact an attorney until after their offer is accepted. Here are a few key reasons why hiring an attorney before you submit an offer is crucial:

1. They Can Help You Craft a Competitive and Legally Viable Offer

As discussed above, your real estate attorney can be an asset in reviewing your offer, even if you are already working with a real estate agent. Massachusetts real estate attorneys work through closings regularly, and they are well trained and educated on the entire homebuying process. When it comes to the offer, they will inform you of your obligations under the terms of the contract, next steps upon an acceptance, and make sure that all deadlines and closing dates are met to keep your transaction on track at all times

2. Understanding the Purchase and Sale Agreement (P&S)

After the offer is accepted, buyers and sellers typically sign P&S, which formalizes the material terms of the transaction. For a full overview of the P&S agreement and what buyer’s need to know, please read our full legal blog post here. As previously discussed, the P&S builds on the original offer, meaning there is little room for major changes. If you didn’t structure your offer correctly, your attorney will have a limited ability to negotiate protections for you at this stage, especially if you are in breach of the original terms of the offer

3. Ensuring a Smooth Closing Process

Once your offer is accepted and the P&S is signed by both parties, the timeline moves fairly quickly. Having an attorney in place early ensures that you have a primary facilitator throughout the entire process. It also ensures that your attorney is familiar with the deal from beginning to end. Your attorney will be in constant communication with your real estate agent (if applicable), your lender, and the seller’s attorney. This guarantees that you can rest easy while your attorney is hard at work pushing your deal forward

4. Avoiding Issues with Title and Ownership

Your attorney will review the title history of the property to ensure there are no outstanding liens, disputes, or issues that could delay your closing. Along with securing a title report to review the property history for potential issues, they will also obtain a plot plan to certify lot size and property boundaries, as well as tax-related documents such as a Municipal Lien Certificate (MLC) from the town. Your closing attorney will also guide you through the purchase of an Owner’s Title Insurance Policy, which provides substantial protections to you as the owner for as long as you own the home. For a full overview of title insurance and its importance in your transaction, read our full legal blog post here

5. Protecting You from Hidden Costs

Because your attorney is working directly with your real estate agent and lender, your attorney can help you understand the full financial picture of your home purchase. Your closing attorney will put together a Closing Disclosure (often referred to as the CD) which provides a summary of all costs associated with your purchase, including closing costs, transfer taxes, and legal fees. While many buyers focus just on the primary obligations such as down payment, interest rate, and taxes, there are numerous hidden costs to homeownership that your attorney can help you navigate. For a full overview of the hidden costs to home ownership and what buyers need to be aware of, please read our full legal blog post here.

Selecting a Closing Attorney Early Protects Your Investment

If you’re in the market for a new home, selecting a closing attorney before you submit an offer should be at the top of your to-do list. The home-buying process in Massachusetts is legally complex, and your offer locks you into a binding contract with significant financial and legal obligations. Having an experienced attorney, such as the attorneys at Lane, Lane & Kelly, on your side ensures that you enter the process fully informed, protected, and prepared.

At Lane, Lane & Kelly, we have over 85 years of experience helping both buyers and sellers in Massachusetts navigate the home buying and selling process, and we are here to guide you every step of the way. Voted the Best Law Firm in Braintree and the entire South Shore of Massachusetts, don’t trust just anyone to protect you during the purchase of a home. Whether you’re a first-time homebuyer or a seasoned investor, our team is ready to help. Contact us today to discuss your home purchase and ensure that your legal interests are protected from the moment you begin your house hunt.

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.