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Incorporating Terms by Reference in Commercial Real Estate Contracts: Knowledge and Assent, Limitations, Enforcement

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

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Wednesday, December 4, 2024

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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.

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.

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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?

Faculty

Kakstys, Clint
Clint Kakstys

Member
Sills Cummis & Gross

Mr. Kakstys’ practice focuses on the acquisition, disposition and financing of commercial properties. He...  |  Read More

Whitman, Elizabeth
Elizabeth A. Whitman

Managing Member
Whitman Legal Solutions

Ms. Whitman has over 30 years of experience as a business and real estate attorney. Her varied experience includes...  |  Read More

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