5 Issues To Know About A Letter Of Intent

While letters of intent may be used in both commercial and residential real estate, letters of intent are typically used in commercial real estate leases and purchases and not in residential transactions.

Here are 5 key issues parties need to think about when preparing or receiving a letter of intent.

A simple letter of intent may be one to two pages long, while a complex one setting forth detailed contemplated terms may be 15 to 20 pages long. A simple LOI may set forth the amount of earnest money deposit, amount of loan, amount that will be paid in cash at the close of escrow, when escrow will open, amount of security deposit, and lease effective date.

A lengthier and more detailed letter of intent may include a lot of the terms that will ultimately show up in the final lease or purchase and sales agreement, including terms of due diligence, inspection rights and obligations, financing, representations and warranties, title insurance, waivers, allocation of closing costs, remedies for default and liquidated damages, and commissions, among other topics.

2. Is An Attorney Required?

Typically, letters of intent are prepared by real estate agents or brokers who are assisting with the lease or purchase transaction. However, it is a good idea to hire an attorney to review it before it is finalized and signed.

Hiring an attorney to help you spot issues may help you ensure that the entire deal will not have to be reworked at a later date. It may also help you ensure that you do not inadvertently create contract terms when you do not intend for the LOI to be nonbinding.

3. Is A Letter Of Intent Binding?

A letter of intent may be binding or nonbinding, depending on the parties’ intent and the language of the LOI. It may also be nonbinding overall but have certain provisions that are binding, such as a confidentiality provision or provide the prospective purchaser or tenant certain reimbursement costs if the deal falls through.

A non-binding letter of intent is used for general discussion purposes only and is not an offer, acceptance, or contract.

4. What Is Allowed After Signing A Letter Of Intent?

Look to the language of the LOI. In particular, avoid partially performing terms in the LOI before you are sure you want to enter into a binding LOI. The parties’ conduct may be used as evidence to determine whether the parties intended a LOI to be binding in some circumstances.

A binding LOI may require the seller to stop marketing the subject real property while the prospective buyer drafts up the purchase and sales agreement and the parties finalize their agreement.

It is important to abide by those terms particularly as there is also likely to be a damages provision requiring parties to pay liquidated damages for violating any term of the LOI.

5. How Should A Letter Of Intent Be Signed?

A letter of intent is typically signed by the party making the offer (or counteroffer) and may have a space for the other party to indicate that the receiving party agrees to the proposed transaction.

Nowadays letters of intent are typically transmitted by electronic mail and may be signed by DocuSign or may be a scanned ink signature.

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