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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Wednesday, December 4, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE webinar will guide counsel on the validity of terms incorporated by reference in commercial real estate agreements. The panel will address how to clarify that the parties had knowledge of and assented to the incorporated terms. The panel will offer best practices for reviewing agreements with hidden terms and what is necessary for enforceability when clients wish to use incorporation by reference. The panel will also discuss how to handle disputes related to clauses in current agreements.

Faculty

Clint Kakstys
Member
Sills Cummis & Gross, PC

Mr. Kakstys’ practice focuses on the acquisition, disposition and financing of commercial properties. He represents owners of properties throughout the U.S. in connection with purchases and sales, with particular emphasis on shopping center transactions. Mr. Kakstys also represents institutional lenders in the origination of commercial mortgage loans for their securitization and balance sheet lending platforms. His practice encompasses financing a variety of property types throughout the country, including retail, multifamily, office, hotel and industrial assets, and he has experience with a wide array of financing structures and deal features, including subordinate and mezzanine debt, 1031 and reverse 1031 exchanges, leasehold mortgages, industrial development agency interests and tenancy-in-common ownership. Mr. Kakstys also has experience representing clients in connection with loan purchases, sales and modifications and commercial leases and subleases.

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Elizabeth A. Whitman
Managing Member
Whitman Legal Solutions, LLC

Ms. Whitman has over 30 years of experience as a business and real estate attorney. Her varied experience includes serving as general counsel for a national real estate company and deputy general counsel for a publicly-traded company.  She also has been in private practice with large, international law firms and served as an administrative law judge. Ms. Whitman has spoken at business and real estate programs sponsored by the Association of Corporation Counsel, American Bar Association, Alternative & Direct Investment Securities Association (formerly TICA). Also a frequent author on business and real estate law, Ms. Whitman has been published in the Fordham Journal of Corporate and Financial Law, Western Real Estate Business, and Realty Biz News. She also writes the award-winning Bach to Business blog, which appears on LexBlog and JDSupra.

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Description

Incorporating terms by reference in commercial real estate agreements, whether commercial leases or purchase and sale agreements, is a common practice where a contract explicitly mentions another document, effectively making that document part of the agreement. There is convenience and efficiency in not fully including the other document's text within the agreement. However, there are significant risks that could invalidate the terms.

Where incorporation by reference clauses are boilerplate with vague descriptions, hidden far into the body of the agreement, and/or refer to other documents that the other party may or may not have seen, validity challenges may arise. When drafting and/or reviewing the agreement, counsel must verify that the parties had knowledge of and assented to the incorporated terms.

Counsel must also be sure that the incorporated terms do not contradict any other terms in the agreement. For example, if the main agreement were to have a forum selection clause stating one jurisdiction while the incorporated document’s forum selection clause stated another.

Listen as our expert panel discusses using incorporation by reference clauses in commercial real estate agreements, describes enforceability requirements, and offers best practices for when an existing agreement presents issues due to such a clause.

Outline

  1. Introduction
  2. Incorporation by reference
    1. Requirements for enforceability
      1. Clear and express language
      2. Agreed and assented to by the parties
    2. Case law
    3. Best practices for mitigating risks of dispute
    4. Handling issues caused by current clauses
  3. Practitioner takeaways

Benefits

The panel will discuss these and other important considerations:

  • What are the enforceability requirements for using incorporation by reference clauses in contracts?
  • What grounds can invalidate an incorporation by reference clause?
  • What are best practices for dealing with disputes related to incorporation by reference clauses in current commercial real estate agreements?