Massachusetts is a state where a real estate closing needs a lawyer doing the substantive legal work of the transaction. The Supreme Judicial Court made that clear in 2011, in Real Estate Bar Association for Massachusetts, Inc. v. National Real Estate Information Services, 459 Mass. 512.
The case
The court wrote: ‘As a matter of common and long-standing practice in the Commonwealth, an attorney must be involved in the closing or settlement of real property conveyances, a fact that the parties here do not dispute.’ The dispute in the case was over how much of the closing process a non-attorney company could handle; the court declined to disturb that long-standing practice and went on to describe, as guidance, what a lawyer’s role in the closing has to look like.
What the court says a closing attorney has to do
The opinion frames the lawyer’s role this way: ‘a lawyer is a necessary participant at the closing to direct the proper transfer of title and consideration and to document the transaction, thereby protecting the private legal interests at stake as well as the public interest in the continued integrity and reliability of the real property recording and registration systems.’ Three things stand out: directing the transfer of title, directing the transfer of the purchase money, and documenting the transaction.
Not a rubber stamp
The court was direct about what wouldn’t count: ‘If the attorney’s only function is to be present at the closing, to hand legal documents that the attorney may never have seen before to the parties for signature, and to witness the signatures, there would be little need for the attorney to be at the closing at all.’
The broader rule
M.G.L. c. 221, § 46A says only a member of the Massachusetts bar may practice law, or hold themselves out as authorized, entitled, competent, qualified or able to practice law. It’s the same principle behind why non-lawyers can’t take over a lawyer’s role in a closing.
Getting ready for your closing
Ask who your closing attorney is before closing day, and expect them to explain what you’re signing before you sign. Buying in Massachusetts? Let’s line up your closing attorney early. Diana Kim, REALTOR®, eXp Realty.
Questions
Common questions
Does Massachusetts require a lawyer at a real estate closing?
Yes. The Supreme Judicial Court said in 2011, in Real Estate Bar Association for Massachusetts, Inc. v. National Real Estate Information Services, that an attorney must be a necessary participant in the closing of a real property conveyance.
What does the closing attorney actually have to do?
The court's opinion says the lawyer directs the transfer of title and the purchase money and documents the transaction, protecting both the parties' legal interests and the reliability of the public recording system.
Can a closing happen without an attorney at all?
No. The court called attorney involvement a long-standing Massachusetts practice and declined to change it. It also warned that an attorney whose only job is handing over unseen documents and witnessing signatures would have little reason to be there.
What law is this based on?
The court described the attorney requirement as a matter of common and long-standing practice in Massachusetts, alongside the state's general unauthorized-practice-of-law statute, M.G.L. c. 221, § 46A, which limits practicing law to members of the Massachusetts bar.
What should I do before my own closing?
Ask who your closing attorney is ahead of time, and expect them to walk you through the documents before you sign.
Sources
- Case caption and date: 'The Real Estate Bar Association for Massachusetts, Inc. vs. National Real Estate Information Services & another,' 459 Mass. 512, decided April 25, 2011 (Massachusetts Supreme Judicial Court, opinion by Botsford, J.).
- G.L. c. 221, § 46A: 'No individual, other than a member, in good standing, of the bar of this commonwealth shall practice law, or, by word, sign, letter, advertisement or otherwise, hold himself out as authorized, entitled, competent, qualified or able to practice law...'
- Case decision date: April 25, 2011 (static.case.law/mass/459/cases/0512-01.json, 'decision_date': '2011-04-25').
Written by Diana Yeji Kim — REALTOR® at eXp Realty, serving Greater Boston in English, Korean, and Japanese.
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