M&A Agreements: Drafting Real Estate and Environmental Contract Provisions

When buying a commercial real estate property, the brokerage agreement is between the buyer or seller and the broker. The broker is an agent of the buyer or seller and, as an agent, has fiduciary duties to the client. Sometimes the broker could act as a dual agent, which creates potential conflicts of interest. Real estate counsel can serve to ensure the broker will represent a client's interest in a transaction by crafting a detailed agreement that meets those needs. Most states recognize that real estate brokers occupy a position of trust through a fiduciary relationship with the parties they represent. A fiduciary relationship brings with it requirements of fidelity and good faith. These issues are often raised in claims that an agent has acted as a real estate broker and a buyer (or seller) of a property. It is a potentially dangerous position for an agent to occupy. The benefit of the brokerage agreement is clear communication between the buyer (or seller) and the broker. It is an excellent opportunity to discuss who will perform what tasks. At a minimum, the best agreements shall establish: (1) the timing for completing tasks, (2) when and how the broker is paid, (3) how to handle broker expenses, and (4) when the broker's representation ends. The broker agreement should limit liability and include indemnification language that protects the broker from the client's acts and ensures that clients are not held responsible for the broker's act. Because this is an agency relationship, the client must communicate to the broker what representations or statements the broker can make on behalf of the buyer or seller. If a dual agent situation cannot be avoided, the issues of potential conflicts of interest should be addressed in the agreement. Listen as our expert panel discusses what constitutes an enforceable broker agreement, clarifies provisions to establish clear fiduciary duties, and outlines how to avoid conflicts of interest while limiting potential liability for the acts of others.

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