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Nondisclosure Agreements and Letters of Intent in Real Estate Transactions: Drafting and Negotiating Enforceable NDAs and LOIs

Recording of a 90-minute premium CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, August 27, 2019

Recorded event now available

or call 1-800-926-7926

This CLE course will guide real estate counsel in drafting nondisclosure agreements (NDAs) and letters of intent (LOIs) before engaging in purchase, sale, or lease negotiations and transactions. The panel will examine key contract provisions and exclusions, common negotiation challenges, and best practices with respect to these types of documents.

Description

A tailored NDA prohibits the restricted party or parties from disclosing information (or allows disclosure only to certain parties) regarding a pending transaction during negotiations and before there is a binding agreement. NDAs may be executed either as a stand-alone document or in conjunction with an LOI and can be unilateral (restricting usually only the prospective buyer or lessee) or mutual (restricting both buyer and seller or lessor and lessee).

Similarly, LOIs are a crucial tool for ensuring there is a meeting of the minds of the parties and keeping the deal in place as negotiations proceed. We will discuss best practices as to what to include and not to include in an LOI as well as relevant customs.

Listen as our panel seasoned in negotiating and drafting NDAs and LOIs outlines best practices based on their experiences with the contracts. The group will examine provisions commonly included in these agreements, typical exclusions, and potential legal pitfalls facing clients engaged in real estate negotiations.

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Outline

  1. Overview of NDAs and LOIs
  2. Advantages of using NDAs and LOIs in real estate leasing, sale, and purchase transactions
  3. Binding vs. non-binding terms
  4. Negotiating specific terms of the NDA and LOI and general format
  5. Enforceability
  6. Drafting pitfalls
  7. Use of disclosures

Benefits

The panel will review these and other key issues:

  • What special confidentiality issues arise during real estate transactions?
  • What complex issues must counsel consider during NDA negotiations?
  • What are the principal provisions to include in NDAs?
  • What are some best practices for resolving disputes arising during NDA negotiations?
  • What are the critical elements of enforceable NDAs in real estate transactions?
  • What are the key advantages of LOIs from the perspectives of the parties?
  • What strategic decisions need to be made to determine how comprehensive an LOI should be?
  • What are terms of the LOI that should be made binding?
  • What is the effect technology has on negotiating NDAs, LOIs, and on contract formation, including the use of text messages, emails, and other means of electronic communication?
  • Why use the qualifier "to be further negotiated in the lease documentation"?
  • Should marketing language be avoided?

Faculty

McPhelin, Hannah
Hannah Dowd McPhelin
Partner
Troutman Pepper

Ms. McPhelin concentrates her practice in real estate matters and other business transactions, including the...  |  Read More

Tomec, Julia
Julia E. Tomec
Partner
Troutman Pepper

Ms. Tomec concentrates her practice in commercial real estate matters and other corporate business transactions,...  |  Read More

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