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

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.

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

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?