Out of State Transactions


Only a Connecticut-licensed attorney may issue title insurance policies and solicit title insurance business. See C.G.S. §38a-402. Any person or corporation violating this section may be fined up to $15,000 per occurrence. See C.G.S. §38a-2. Attorneys typically close real estate transactions and disburse - because so many aspects of a real estate transaction constitute the practice of law. There is currently a federal class action law suit pending against the ten largest national title insurers. The suit alleges that the insurers have created unlicensed, illegal title agencies. The plaintiff survived a motion to dismiss, and the case continues. See Gale v. Chicago Title Insurance Co., et al., Civil Action No. 3:06CV1619, U.S. District Court for District of CT.

A Delaware licensed attorney must conduct the settlement of a real estate loan and must disburse the transaction. See In the Matter of a Member of the Bar of the Supreme Court of Delaware, Number 313, 2006; In re Mid-Atlantic Settlement Servs., 755 A.2d 389, 2000 Del. LEXIS 243 (Del. 2000). It is also customary for an attorney to examine and certify title to real property.
As of May 2, 2012, pursuant to Georgia Senate Bill 365, a Georgia licensed attorney must oversee, close, and fund the transaction, as well as be physically present at the time of the closing. Any individual or entity in violation of this section shall be liable for damages and also be guilty of a misdemeanor. See O.C.G.A. §44-14-13. Only an attorney can prepare documents conveying title, including security deeds and deeds to secure debt. See also Formal Advisory Op. No. 86-5 (86-R9) (May 12, 1989); Formal Advisory Op. No. 00-3 (Feb. 11, 2000); and Formal Advisory Op. No. 03-2 (Nov. 10, 2003)."
Massachusetts licensed attorneys are required to be active participants in real estate closings and must do more than act in a witness-only capacity. As closing agents, as they must effectuate the transaction. As part of the attorney's substantive role in the transaction, the Massachusetts Supreme Judicial Court has stated that "there must be a genuine attorney-client relationship" between the lender and the attorney handling the closing. REBA v. NREIS, 459 Mass. 512 (2011). Only an attorney can draft "deeds to real property," which includes mortgages, and only an attorney can give an opinion regarding title. Id.
New York licensed attorneys are involved in all aspects of real estate closings. Typically, each party to a transaction retains an attorney to represent their interests. Any notaries or non-attorneys attending a closing, must do so under the direct supervision of an attorney. In residential refinances, the attorney normally represents only the lender. Only a New York licensed attorney can receive compensation for preparing deeds, mortgages, assignments, discharges, leases, or any other instruments affecting real estate. See N.Y. Jud. Law §484. Effective November 1, 2013, the penalty for any person or business engaged in the unauthorized practice of law has been increased from a misdemeanor to class E felony. See N.Y. Jud. Law §§476 (d).

A North Carolina attorney must supervise the closing, approve funds for disbursement, and certify title. NC Bar Advisory Opinion 2002-1. Only a North Carolina licensed attorney can certify title to a title company before a title policy may be issued. The certifying attorney may not be an employee or agent of the title company. See NCGS §58-26.1. Drafting of legal documents, including deeds, mortgages, and other transaction documents must be done by a North Carolina attorney. NCGS §84-2.1.

Each phase of a real estate transaction must be supervised by a South Carolina licensed attorney. This includes preparation of legal instruments and abstracts, being physically present at the closing, and recording of instruments. See South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C.1987); Doe v. Condon, 568 S.E.2d 356 (S.C.2002). Real estate and mortgage loan closings completed without the supervision of a licensed South Carolina attorney constitutes the unauthorized practice of law, and bars the lender from equitable relief, including foreclosure. See Matrix Financial Services Corp. v. Frazer, 714 S.E.2d 532 (S.C. 2011).