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Real Estate Due Diligence in M&A Transactions: Title, Survey, Financing, Lease Transferability, Environmental

Asset vs. Stock Purchase; Reps and Warranties to Address Gaps in Due Diligence

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

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Conducted on Thursday, December 10, 2020

Recorded event now available

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This CLE course will guide counsel on how to conduct real estate due diligence in an M&A transaction. The panel will discuss how due diligence in M&A can vary from standard real estate deals, and how the type of transaction--asset purchase, stock purchase, or merger--can affect the process. The panel will also discuss the use of reps and warranties to cover real estate matters which cannot be examined or resolved before closing.


Most mergers or acquisitions will involve real estate assets. Where real estate represents a significant aspect of the target's business, the due diligence for the M&A transaction should mirror that conducted under a real estate sales contract or a loan commitment. Otherwise, the due diligence requirements will likely be more limited. Counsel must have a thorough understanding of the role that real estate plays in the transaction.

The real estate due diligence process will also vary depending upon the structure of the M&A transaction. In an asset purchase, the purchaser is only liable for those obligations of the seller designated in the acquisition agreement. In a stock purchase or a merger, the surviving company is the successor to assets and liabilities of the disappearing company.

The buyer will often defer some of its due diligence until after the parties sign a definitive agreement. Instead, the buyer may rely on representations and warranties and representations from the target regarding title, survey, environmental, property tax, insurance, and other matters. Assumption of existing leases may be of particular importance to the business; counsel must carefully review lease terms and lease transferability.

Listen as our authoritative panel discusses best practices for real estate due diligence in M&A transactions.



  1. How real estate due diligence in M&A transactions differs from real estate transactions
    1. Assessing significance of real estate assets in the deal
    2. Assessing deal structure: asset purchase, stock purchase, merger
    3. Transaction Timing
    4. Transaction Agreement
    5. Practice tips
  2. Key due diligence concerns
    1. Title and ownership of assets (often in an SPE)
    2. Survey
    3. Leases: key terms, confirming assignabilty
    4. Environmental due diligence
    5. Taxes and insurance
    6. Litigation related to the asset(s)
  3. Addressing gaps in due diligence
    1. Reps and warranties
    2. Indemnification and escrow


The panel will review these and other issues:

  • How is real estate evaluated, and in what ways is due diligence limited, in the M&A deal process?
  • What real estate risks must be considered with a stock purchase as opposed to an asset purchase?
  • What aspects of real estate due diligence can be conducted prior to going to contract?
  • When can reps and warranties be used to address gaps in the buyer's knowledge about the target's real estate assets and liabilities?


Lanzkron, Joseph
Joseph Lanzkron

Cleary Gottlieb Steen & Hamilton

Mr. Lanzkron’s practice focuses on real estate, corporate, and financial transactions. He regularly advises...  |  Read More

Meacham, Brian
Brian D. Meacham

Smith Anderson Blount Dorsett Mitchell & Jernigan

Mr. Meacham has experience representing public and private companies in mergers and acquisitions and commercial...  |  Read More

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