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We have a commercial property which is currently under

contract. The contract has both...
We have a commercial property which is currently under contract. The contract has both confidentiality and exclusivity agreements in it. Unsolicited, I have received a written inquiry from another interested buyer. I have not replied to this inquiry yet. Without seeing our specific contract, what are the typical limitations in regard to confidentiality and exclusivity agreements? Am I simply able to let the interested party know that it is not available? Secondly, the potential buyer has missed his escrow payment deposit dates. What is the consequence to the buyer for late/no deposit?
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Answered in 57 minutes by:
5/15/2018
DamienJD
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If someone is inquiring about the property, it should be fine to say that the property is under contract. The protected disclosure has to deal with the information regarding the sale.

Usually, the language would be something similar to below language:

The Recipient agrees that the Recipient will not communicate with any owner, investor, lender, tenant or other party having an interest (direct or indirect) in any real estate or loan included in the Business Opportunity, or any of such party’s owners, officers, employees, or agent without the prior written consent of the Discloser. Recipient will not (a) interfere with, circumvent, avoid, bypass or obviate; or permit any of its Representatives to interfere with, circumvent, avoid, bypass or obviate Discloser’s any of its Representatives’) rights and agreements in respect of the Business Opportunity; or (b) without Discloser’s prior written consent (i) enter into discussions with any third party disclosed or introduced to Recipient by Discloser (or any of its Representatives) having an interest in the Business Opportunity or with which Discloser has a joint venture, financing, equity, finder, brokerage or other business relationship in connection with the Business Opportunity (a “Protected Relationship”), or (ii) initiate and negotiate in respect to any transactional relationship with any such third party (or any of its Representatives) in connection with the Business Opportunity; or (c) circumvent or attempt to circumvent the discussions and negotiations currently underway or hereafter entered into by Discloser (or any of its Representatives) and any such third party (or any of its Representatives) with respect to the Business Opportunity; or (d) take any action or fail to take any action that would circumvent this Agreement, make use of a scheme, artifice, device or third party to circumvent this Agreement or make any effort to circumvent this Agreement.

So, informing that the property is under contract would not necessarily be construed as releasing confidential information.

Separately, if a buyer is late on payments, the buyer could be in breach of the agreement.

If you have further questions or you need further assistance, just let me know.

If not, please remember to rate my answer between 3 to 5 stars without any additional costs to you. That is how I get credit for answering your question. Best regards

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Customer reply replied 3 months ago
would it be reasonable to say, "the property is under contract not available at this time. you can check back after such-and-such date regarding availability.". the date referred to above would most likely be the end of the feasibility period in the current contract.

It sounds reasonable to say to someone that the property is under contract and they can check back at a later date without giving a specific date. Giving a specific date can be construed as providing confidential information.

If you have further questions or you need further assistance, just let me know.

If not, please remember to rate my answer between 3 to 5 stars without any additional costs to you. That is how I get credit for answering your question. Best regards

DamienJD
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Customer reply replied 3 months ago
perfect. thank you for your help.

You are welcome.

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