As of January 22, 2017, Mr. Millar is no longer accepting new clients.



Real Estate Lawyer

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Real Estate Transactions

Mr. Millar represents buyers and sellers of residential and commercial real estate.

He has litigated over 150 real estate disputes involving everything from adverse possession to the failure to disclose defects. His clients include not only individuals and businesses, but also real estate brokers, title companies and mortgage companies.

This diverse background has uniquely equipped Mr. Millar to provide you with superior legal representation in your real estate transaction.

  • FOR BUYERS - Click here for more information

    The purchase of a home is frequently the most important transaction in a person’s lifetime. Michael Millar has been handling real estate transactions for more than 20 years and can guide you through the complexities of your purchase of a home.

    Mr. Millar and his staff will work closely with you, the real estate agents, the seller and the mortgage lender to ensure a smooth and timely closing. If problems arise during the course of your transaction, we will advise of your options.

    Contract Signing and Attorney Review

    Typically, your purchase will begin with you working with a real estate agent. You will find a property, make an offer, may haggle over price and then will sign a Realtor® form contract.

    Once the contract is signed and delivered to both parties, the three day attorney review period begins. During the three day period, the contract may be modified or cancelled. If no one communicates a change or a cancellation, then after the three day period ends, the contract become final and binding. There may be strategic reasons for not requesting changes. For example in a down market, (where home values are declining) a seller may not want to kill the deal but get to a binding contract as quickly as possible because if a deal falls through it may be months before they find another buyer. Conversely, in an up market, a buyer may want to get to a binding contract as quickly as possible in order to prevent other, higher offers from being presented to the seller.

    Typically one or both sides will request changes to the form contract. By law, in order to request a change, your attorney must send an "attorney review letter" which cancels the contract but offers to revive and re-instate the contract if your requested changed are accepted by the other side. Once one side send an attorney review letter, the process becomes open-ended and there will not be a binding contract until both sides agree to all changes.

    As a buyer, the changes that you may be interested in include:
    (1) allowing the return of your security deposits should the bank refuse to issue a mortgage through no fault of your own (there is case law to the effect that a person who loses his job and therefore has a mortgage commitment withdrawn prior to the closing is still liable to the seller under the contract of sale);
    (2) permitting you to cancel if there are easements other than utility easements that service the property (you may not want a property which has significant area that you cannot use);
    (3) permitting you to sweep the property with ground penetrating radar to look for abandoned underground home heating oil tanks (older properties may have once had USTs - - if you buy a property with a leaking UST, you are strictly liable for its removal and the cost of remediation of soil and water - and a leaking UST can cost hundreds of thousands of dollars to remediate).

    New Jersey has very different rules for handling real estate transactions. In South Jersey, it is not unusual to see a transaction in which no attorney is involved. Whereas in North Jersey, attorneys are typically involving in all transactions.

    Given the relatively small expense of retaining an attorney, it is advised that you utilize a real estate attorney regardless of whether your property is located in South or North Jersey.

    Home Inspections

    After the completion of attorney, review you will hire a professional home inspector to conduct a home inspection of the property. The contract will specify the deadline for conducting inspections - usually 10 -14 days from the conclusion of attorney review. Typically, the real estate agent will find provide you with the names and numbers of home inspectors. The home inspector will provide you with a written report that alerts you to areas of concern noticed by him or her. A home inspection is "non-invasive" - meaning that the home inspector does not lift up carpets to the see the condition of sub flooring or remove sheetrock to see what is happening in the walls. The home inspector can only report on what he or she can actually see. Once you receive the home inspection report, you will let your attorney know what repairs you will demand prior to closing.
    Your home inspector will usually perform a test for radon gas. Radon gas is a naturally occurring radioactive gas that sometime can reach high levels in well insulated homes.
    If the home is serviced by a section system, you will need to hire a separate inspector that system.
    If the home has a swimming pool, you may need a separate inspector.
    If the home's drinking water is provided by a private well, the seller has to provide a "potability" test.

    Title and Survey

    If you are obtaining a mortgage to purchase your home, your lender will require that you obtain title insurance and a current survey.

    Even without a mortgage, to ensure that you are obtaining clear title, you should order either a title abstract or title insurance.

    Note that the title searches performed when you order title insurance are performed for the benefit of the title insurance carrier. The title search reveals what exceptions will be listed on your title policy.

    Properties in the Jersey Shore can be subject to CAFRA and wetlands permits.

    Properties may also be subject riparian claims asserted by the State of New Jersey.

    Mortgage Contingency

    The contract will typically require that a buyer obtain a mortgage commitment within 30 days of the conclusion of attorney review. As previously indicated, the wording of the mortgage contingency is very important to the Buyer. Some Realtor® form contracts provide that if the Buyer does not provide notice within 30 days, then the deal is dead. Other "form" contract provide that if the Buyer does not communicate in writing that they have been unsuccessful in obtaining a mortgage commitment, then the must proceed without a mortgage. Thus, the language of the mortgage contingency is very important.

    Note that the contract may have other contingencies. And, it is important that you inform your lawyer of any special needs or plans for the subject property so that he or she can amend the contract to address those needs or plans.

    Certificate of Occupancy/Smoke and Carbon Monoxide Detector Certificate

    The Seller is required to obtain a CO detector certificate prior to closing. Some towns require a "Certificate of Continued Occupancy" or "CCO". The seller has the obligation to obtain the CCO.

    The Final Walk Through Inspection

    Usually, prior to the closing of title, the Buyer will perform a final walk through inspection of the house. This inspection is important because it allows the Buyer to determine if the Seller has removed all of their personal property and if there has been any damage to the home since the home inspection. If the Buyer observes a problem, they should immediately notify their attorney.

    The Closing

    The closing typically occurs at the office of the buyer's attorney or at the office of the title company.

    The closing is usually comprised of two parts - the closing of mortgage and the closing of title. The buyer usually arrives 30 to 60 minutes before the Seller so that they can close the mortgage. Closing the mortgage involves signing all of the paperwork for the bank - the note, mortgage and various disclosures. The Sellers arrive to complete the closing of title which involves the review and signing of the HUD1/RESPA settlement statement and the exchange of the deed, affidavits of title and tax forms. Finally, the checks are handed out and the Seller hands over the keys to the home to the Buyer.

  • FOR SELLERS - Click here for more information

    The Listing

    The process of selling a home typically begins with a listing with a real estate broker. The broker will arrange open houses and engage in other marketing activities to find a suitable buyer for your home.

    If you home is a condo or is located in a planned development, you must get a copy of the by-laws and any rules and regulations to provide to prospective purchasers.

    A broker often will require that you complete a Sellers Property Condition Disclosure Statement at the time of listing. It is important that fully complete the disclosure and that you report any problems that you may have encountered while you owned the home. If the roof once leaked but is now fixed, some sellers won't disclose the prior leak. That is a mistake. You cannot be sued for disclosing defects. You can be sued if you don't.

    The Contract

    Once a prospective buyer is located, the broker will prepare a NJ form contract of sale.

    Once the form contract is signed by both the buyer and the seller and returned to the parties, the three day attorney review period begins. If you do nothing, the contract will be a binding in three days. If an attorney makes changes, then the three day period no longer applies and the attorney review period will last until both sides agree to all proposed changes to the contract of sale.

    New Jersey has very different rules for handling real estate transactions. In South Jersey, it is not unusual to see a transaction in which no attorney is involved. Whereas in North Jersey, attorneys are typically involving in all transactions.

    Given the relatively small expense of retaining an attorney, it is advised that you utilize a real estate attorney regardless of whether your property is located in South or North Jersey.

    The Home Inspection

    After the contract is finalized, the buyers will perform a home inspection. If the home inspection reveals defects - and it typical will - the buyers may ask for repairs or a credit at closing to make the repairs themselves. You should not be offended when buyers ask for credits or repairs. It is standard part of the process and it is permitted by the form contract - even when the home is being sold "as is". The negotiation over credits and repairs is a crucial point in the process. If the seller does not agree to the requested credits or repairs, the buyers may cancel the transaction and walk away. Thus, before playing "hard ball", you should consider whether you are willing to have the deal cancelled. Note that once you make a response that differs from the buyers' initial demand, the buyers are free to cancel and you cannot later withdraw your response or change your response or agree the buyers original demands - unless the buyers first agree to revive the deal.

    Title and Survey

    Once the home inspection issues are agreed to, the buyers will typically order title and survey. Title is rarely an issue - but every now and then it can result in problems. Issues such as easements, rights of way, riparian claims and CAFRA permits can affect the planned use of the property. A survey may show that fences or structures encroach over the property line.

    As part of the title search, the title company will perform judgment and lien searches on the seller and the buyers. Occasionally, a prior mortgage may not have been discharged and remains a cloud on title. Judgments and liens will have to be paid or discharged prior to closing. Prior mortgages will have to be removed from the record. This may entail withholding a seller's proceeds at closing in an escrow account until the prior mortgage is removed from title.

    If your home has a home heating oil underground storage tank ("UST"), the buyers will have it tested. If the tank passes, there are no issues. However, if the tank does no pass, then you may have to replace or abandon the tank.

    Once we get past the home inspection and title issues, we will prepare for closing. The seller will have to provide a mortgage pay off statement and complete a bulk sales tax form. if you are moving out of the State of New Jersey, you may be required to pay income or other taxes at the closing.

    Prior to the closing, your realtor will help you procure a smoke detector and carbon monoxide detector certificate. If required, the realtor will also help you obtain a certificate of continuing occupancy.

    The Closing

    The closing will typically be conducted either by the buyer's attorney or a title company. It is standard practice to have the seller travel to the buyers' attorney's office or buyers' title company for the closing.

    The buyers must first conduct a mortgage closing before they can close title. The seller does not need to be present for mortgage closing.

    Assuming that all issues have been worked out ahead of time, the title closing typically takes no more than thirty minutes to complete.

    At the closing, we will review the closing statement with you so that you can see how much is being paid and what disbursements are being made.

    It is not uncommon for sellers to sign all of their documents ahead of time and to give their attorney a limited power of attorney to sing the closing statement for them. In this way, there is no need to attend the closing - but it may also mean that you will not get your proceeds until a day or two later.

  • WHAT WILL IT COST? - Click here for more information

    The numbers below are taken from an actual closing of a home, which sold for $732,500.

    Your numbers will differ as some costs are a percentage of the sales of price (e.g., the title insurance and realty transfer tax) and others are negotiable (e.g., mortgage costs, attorney fees and realtor fees).


    The Buyer's total costs in this transaction were $11,826.88 - the Buyer also paid an additional $477.30 to reimburse the Seller for property taxes, which had already been paid - So, the total costs to the Buyer were approximately $12,300.

    The breakdown of the costs were as follows:

    Mortgage origination fee - $695 (or which $350 were paid prior to closing and another $345 were collected at the closing)
    Appraisal fee - $350
    Credit report - $15
    Tax service - $90
    Flood certification - $29
    Prepaid Interest - $755.56
    Property taxes - $3,688.30

    Lender's title insurance - $2,736
    Owner's title insurance - $1,037
    Attorney Fee - $1,500
    Recording Fees - $381
    Survey - $800


    The Seller's total costs in this transaction were $44,346 - the Seller was paid an additional $477.30 as reimbursement for property taxes, which had already been paid - So, the total costs to the Seller were approximately $43,850.

    The breakdown of the costs were as follows:

    Realtors - $36,625

    Attorney Fee - $1,000
    Cashier's Check - $25.00
    FedEx Fee (mortgage pay-off) - $20.50
    Mortgage Discharge - $85.00
    Realty Transfer Tax - $6,589.50

    NOTE that if your home has been used as a rental property, is owned by an LLC or other business entity, or if you are moving out of New Jersey, that taxes may be required to be held in escrow.

Residential Real Estate: Did you know?

  • Title searches are not performed for the benefit of the buyer, but are performed for the title insurance company.

    Image of stick figure with blue question mark. New Jersey real estate lawyer Michael Millar will answer your questions about real estate transactions.
    When buying a parcel of property or a home, most people believe that the searches that they receive from the title insurance company are performed for the buyer and are meant to assure the buyer that the buyer is receiving clear title. That is not the case. The New Jersey Supreme Court has ruled that the title search that the buyer receives, and pays for, is solely for the benefit of the title insurance underwriter. It is performed so that the title insurance company can evaluate its risk and to decide if it will issue a policy. Thus, if there is a mistake in the title search, e.g., the searcher did not find a lien, the buyer has no cause of action against the title company for a "negligent title search". Rather, the only claim that the buyer may assert is a claim under the policy of title insurance. And, importantly, some risks are not covered by the title insurance policy. For example, the presence of a CAFRA or wetlands permit is not a covered risk under a title insurance policy. If a buyer wants to protect his/her interest, they must order a separate search for an abstract of title - at an additional cost.

    See: Walker-Rogge, Inc. v. Chelsea Title & Guaranty Co., 116 N.J. 517 (1989).
  • Homeowners who act as their own GC must disclose that there is no HOW when they sell.

    Image of question mark in blue bubble. Michael Millar is an experienced, knowledgeable and aggressive real estate attorney in Toms River, New Jersey
    Homeowners who act as their own general contractor when building a new home are required by New Jersey state law to disclose that the home does not come with a new homeowner's warranty ("HOW") when they choose to sell the home.

    See: N.J.A.C. 5:25-2.1(d) ("If such new homes are subsequently sold to purchaser who is not the original builder/owner, notification that the home carries no warranty shall be made at the time of title transfer and/or closing.")
  • One of the primary reasons that a Seller is sued by a Buyer after the closing is a failure to disclose some condition or repair.

    Image of question mark in blue bubble. Michael Millar is an experienced, knowledgeable and aggressive real estate attorney in Toms River, New Jersey
    In New Jersey, there is no “caveat emptor” - let the buyer beware. To the contrary, the law imposes an affirmative obligation on a Seller to disclose all facts known to the Seller that a Buyer might need to make the decision to purchase the home. When listing a home with a Realtor®, a Seller is asked to complete a Seller’s Property Condition Disclosure Statement. Many Sellers incorrectly interpret the directions provided with the Seller’s Disclosure - they believe that they are only obligated to disclose problems that now exist or that have not been previously fixed. That belief is wrong. That mistake leads Sellers to omit information concerning conditions that occurred, or that were fixed, years ago.

    We have represented parties in over 150 lawsuits involving a dispute with the sale of a home. The most common reason given for the lawsuit is a Seller’s failure to disclose a condition or a previous repair. Thus, as a Seller, you should disclose everything - even if the event has not occurred in years and even if you believe that your correctly fixed the issue or condition. If you had water in the basement 10 years ago, if you repaired a leaking window, etc., you should disclose those facts on the Seller’s Disclosure. You cannot be sued for what you disclose (unless it is untrue), however you can be sued for what you do not disclose. The prudent course of acton is to err on the side of caution and to disclose every event, condition or repair that has occurred to, or at, the home and that you know about.

As of January 22, 2017, Mr. Millar is no longer accepting new clients.


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