This article is the third in a four-part series that examines how litigation—and, more specifically, its results—can shape the evolution of best practices in the real estate industry. The first article discussed some of the hazards of statutes of limitations; the second counseled caution in drafting "good guy guaranties" in light of certain developments in the case law.

This third article will focus on circumstances in which contractual or contract-like liability can arise even in the absence of a written contract, and the corresponding importance of a comprehensive drafting approach in order to avoid surprises.

The Issue

Real estate deals tend to be heavily papered. A single transaction or project may involve joint venture partners, buyers and sellers, lessors and lessees, brokers and others—giving rise to relationships that are governed by what can literally amount to stacks of complex agreements. But even in the context of such transactions, claims are sometimes asserted based on alleged rights that are not set forth in those agreements.