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ACREL News & Notes - June 2020

Tuesday, June 9, 2020   

Welcome to the ACREL News & Notes!  It is published six times throughout the year and features articles on substantive areas, noteworthy cases and hot topics, upcoming meetings, ACRELive presentations and Fellow and local ACREL events.

 

We welcome your suggestions!  Send ideas to David Gordon, dgordon@wilentz.com

--ACREL Communications Committee

 

Be sure you're logged in to the ACREL site to view any individual articles below!

 

If you prefer a printable version of the News & Notes click here.

The Very First ACREL Virtual Meeting Planned for Fall, 2020

Although we will not be able to meet in person in Denver due to the coronavirus, we are already planning The Very First ACREL Virtual Meeting.  The Programs Committee, led by Sheila Nolan Gartland, is considering how best to present the CLE for which ACREL is renowned.  The Meetings Committee, led by James Candler and Robert Lane, is planning for the other aspects of the meeting, and the ACREL Executive Staff, Executive Committee and Board of Governors are planning for a virtual business meeting.  If you have any suggestions, we want to hear them.

In the Meantime

Our substantive committees have stepped up their game and are holding multiple conference calls and zoom calls to allow us to stay in touch with our colleagues.  They alert our Executive Staff of upcoming calls so this information can be shared with the entire College.  Take this opportunity to find out what other committees are doing…you can always join without cost and without being obligated to participate actively.  I have been able to join many of these calls, which serve not only to share substantive law developments, but also to offer a “group hug” in the absence of our in-person meetings.  We have set up a discussion board on the first page of acrel.org that you can use to post late-breaking developments.  We all value ACREL for its collegiality and friendships, and we are learning just how important that is as we navigate the current changes. 

To read the rest of Marilyn's Message, click here.

It is with great sorrow we inform you of the passing of the following members of ACREL's extended family.  Our thoughts are with their family, friends and colleagues.

David Auten

Philadelphia, PA

April 4, 1938 - May 9, 2020

Former ACREL Fellow

Lorraine Epstein

Mother of Jay Epstien

Delray Beach, FL

December 19, 1926 -

June 1, 2020

 

 

 

 

 

Catherine Peterson

Wife of Ed Peterson

Mabank, TX

June 17, 1942 -

June 3, 2020

Adam Leitman Bailey



Adam Bailey was recently profiled in Bisnow's, "Beyond the Bio" on May 11, 2020.  Read the article here.

 

James C. Smith



Jim Smith was recently appointed as an observer for ULC's study group on owners of heirs property.  For a further description of the position, click here.

Thomas W. Mitchell

 

Thomas Mitchell recently collaborated with the producers and was interviewed on Showtime channel's VICE on an episode entitled "Losing Ground."  This episode highlights how partition law abuse has contributed to substantial property loss in the African American community and it references the Uniform Partition of Heirs Property Act.

Have you recently received an award?  Been published?  Presented at a conference?  

Share with us today on the ACREL LinkedIn group!

Formation of ACREL Construction Law Committee 

ACREL is excited to announce the formation of our newest substantive committee, the Construction Law Committee.  Based upon the very strong response to ACREL’s solicitation of interest, the Construction Law Committee was formed and will conduct its first meeting, via a Zoom format, in the near future.  Although that first meeting will be organizational in nature, we encourage everyone who can to participate, as we will be setting the Committee’s initial agendas and initiatives. We anticipate the Committee will focus on all aspects of construction, emphasizing construction-specific insurance; trends in construction legislation, regulation and court decisions; and best practices in construction transactions and litigation.  If you’re interested in joining, please email the Chair, Lee Weintraub at lweintraub@beckerlawyers.com to be added to the Committee roster and listserv.  We also welcome the Vice-Chair, George Meyer and Secretary, Trippe Hawthorne.

If the Shoe Fits Wear It –
Shoehorning Waivers of Subrogation into Commercial Leases

Wednesday, June 10, 2020

1:00 to 2:00 p.m. Eastern

No shoe fits all when it comes to waivers of claims, indemnities and insurance in commercial leases, but there are steps to take in order to get these shoes on the right foot and to property address the inevitable right of subrogation of the parties' insurance providers.  This program and materials address the inter-related lease provisions that can make or break a landlord's or a tenant's budget when bad stuff happens to or in commercial building or elsewhere on the landlord's property, regardless of who is at fault.

The Impacts of the Coronavirus Pandemic on Real Estate Contracts:
Frustration of Purpose, Impossibility, Impracticability and Force Majeure

Thursday, July 9, 2020

1:00 to 2:00 p.m. Eastern

This program examines why COVID-19, unlike any other recent pandemic, has shaken our society to its core. The disruptions to legal relations, particularly landlord-tenant, purchase and sale, mortgage financing, and construction contracts, have been profound.  Whether the traditional theories for excusing contract performance can be applied to determine liability as we are constrained by and respond to this malevolent force is not clear. As the pandemic evolves, so might new theories for assigning and adjusting risks. Join us for a discussion of these issues and for advice on drafting to define relations for the next fateful disruption.

Who Can Hear You Now?  Working from Home and Professional Responsibility

Andrea Geraghty, Meyer, Unkovic & Scott LLP, Pittsburgh, PA

The Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility issued its Formal Opinion, Ethical Obligations for Lawyers Working Remotely on April 10, 2020.  This opinion was issued after the Governor of Pennsylvania Tom Wolf issued stay-at-home orders and ordered the closure of nonessential businesses during the COVID-19 pandemic. Despite increasing dependence on technology, many lawyers were not fully prepared to work remotely.

When You Want Your Non-Recourse Loan to be Recourse (Sort of)

Michael D. Goodwin, Arnold & Porter, Washington, D.C.

We all spend a lot of time drafting, negotiating and wringing our hands over the non-recourse and “special purpose entity” provisions of loan documents.  But there’s one nuance to these provisions, and their interplay, that gets little attention - that is, until the market turns and the deal goes into foreclosure.

The New Form of Additional Insured Endorsement and How it will Hurt Landlord Liability Coverage

Marie A. Moore, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA

In most commercial leases, and certainly in net leases, the Landlord expects the Tenant’s liability insurance policy to provide a defense for and cover claims made against the Landlord by reason of accidents on the leased property.  The traditional way to accomplish this goal has been for the Landlord to assure that the Tenant has made the Landlord an Additional Insured on the Tenant’s liability policy.  Before December 2019, the standard Additional Insured endorsement in favor of Landlords for the most part accomplished the Landlord’s goal because it made the Landlord an insured on the Tenant’s policy as to all liability arising out of “the ownership, maintenance or use” of the premises leased to the Tenant.  But in December 2019, ISO promulgated a new Additional Insured endorsement form – a form that provides much less protection for the Landlord and no longer satisfies the Landlord’s goal of premises-based protection.

What Works For Me (Part II)

Richard J. Sobelsohn, Cohen Brothers Realty Corporation, New York, NY

Due to COVID-19, those of us that teach in law schools (or anywhere else for that matter) have had to retool our pedagogy this semester.  It seems that all law schools were forced to reinvent themselves as on-line institutions (at least for the time being) and this presented myriad of challenges for both an institution’s administrators and their faculty.  The ultimate question though, is can we make it work (as best we can) for our students and ourselves.  I believe that we can and are!

Adverse Possession and Tenancies in Common

Adam Leitman Bailey, Adam Leitman Bailey, P.C., New York, NY

The law of adverse possession is deeply rooted in the common law and its elements are generally well-known to practitioners. However, adverse possession rules, as applied to tenancies in common,  are less often encountered by practitioners, and the statutory language itself can be subject to misinterpretation without a careful review of the relevant case law. This article is intended to clarify the issues that often arise when one cotenant claims adverse possession of the entire property against his or her fellow cotenant.  With regard to obtaining adverse possession as applied to tenancies in common, most states agree that adverse possession can be obtained after a disengaged tenancy in common but many of these states have their own timelines, and other requirements.

Notice Provisions in the Time of COVID-19

Stevens A. Carey, Pircher, Nichols & Meeks LLP, Los Angeles, CA

Social distancing and stay-at-home, safer-at-home, and shelter-in-place orders during the current pandemic have changed the way we communicate.  The notice provisions in our contracts, many of which were outdated before the current crisis, are now in even greater need of an overhaul to reflect the realities of current practice.  This article will propose and explain notice provisions prepared for the ACREL Acquisitions Committee pre-negotiated purchase agreement project described at the end of this article.  

The COVID-19 Pandemic! The Unthinkable Happened – Now What?

Jodi B. Fedor, Shartsis Friese LLP, San Francisco, CA

In 2016, I wrote an article for ACREL titled “Riots! Pandemics! Active Shooters! Thinking About the Unthinkable When Negotiating Real Estate Documents.” At the time, risks from active shooters and riots were closer to the mind of real estate practitioners, given “Occupy” and other protest movements, and mass shootings in public places. Although the avian and swine flu scares had occurred in years and awareness of the Zika virus was emerging, a pandemic of the magnitude and worldwide impact of COVID-19 was far from anyone’s thoughts. 

Hotels and COVID-19

Geoffrey M. White, Frost Brown Todd, Louisville, KY

The ongoing COVID-19 pandemic has affected all areas of the economy, and the hospitality industry was one of the first to see significant and material economic issues. Hotel owners and operators are specifically facing declining occupancy, event cancelations, defaulting loan obligations, staffing issues and other concerns. Even though the market has somewhat improved compared to the low point in early April, statistics from early May indicate that nationwide occupancy is down more than 50% and revenue per available room down more than 75%, each year over year.  This article identifies and discusses several key issues hotel owners and their counsel need to be aware of while navigating these unprecedented events.

The article below is part of an ongoing project of the Acquisitions Committee, undertaking a comprehensive survey of the law relative to enforceability of liquidated damages clauses and alternative remedies in purchase and sale agreements.

Liquidated Damages in Purchase and Sale Agreements: Texas

Brad Carson, Carson Kruger, San Antonio, TX

One of the most fundamental principles behind contract damages in Texas is that they are only meant to compensate for losses, and nothing more.  Even though liquidated damages are utilized in cases where actual damages are difficult or impossible to estimate, this principle still applies. Consequently, Texas courts will undertake a careful review of liquidated damages provisions to determine whether the liquidated damages function as “just compensation” for losses or if they are unenforceable because they function as a punishment for breach.

Read all of the articles from this and past issues of News & Notes here.

This section of News & Notes features content that was originally published elsewhere or was written by non-ACREL members, but is believed to be relevant to our Fellows.

Real Estate: Introduction

Jay Epstien and John Sullivanoriginally published in Chambers Global Practice Guide

"Real estate sits at the intersection of supply, demand, liquidity and capital markets, and reflects the dynamics and trends of the broader global economy.  As the third largest investment type (following fixed income and publicly traded equities), commercial real estate has firmly established itself as a major global asset class. As we enter the third decade of the 21st century, it's a good time to pause and reflect on the significant shifts in the real estate industry over the past 20 years and look at the challenges and opportunities facing the industry in the coming years.

Dreamers, COVID and the many costs of family separation

Richard Klawiter, originally published in Crain's Chicago Business

We need all the help we can get now—and the value of the 27,000 Dreamers who work in our nation's health care system has never been so evident and so paramount. 

Rose Mary Knick and the Story of Chicken Little

Dwight Merriam, originally published in the Fordham Urban Law Journal

"The case of Knick v. Township of Scott risks becoming a fairy tale of the frightening kind if we fail to put it into perspective. With Knick, the U.S. Supreme Court cast aside the second prong of the ripeness test, overruling a 34-year-old precedent that a takings claimant had to first seek compensation in the state courts under state law before going to federal court. One perspective on the decision was that “Knick may result in the crowding of federal courts, through which myriad takings claims stemming from local regulations of zoning and land use may now pass unencumbered.”

Law 360 recently interviewed three ACREL Fellows for their "Coronavirus Q&A" series

 

Click the buttons below to read each interview.

Chicago Title Insurance Company

Chicago Title Insurance Company has been a trusted partner in residential and commercial real estate transactions throughout the country, since issuing its first modern title policy in 1876.  As a member of the Fidelity National Financial family of companies and the nation's largest title insurance group, Chicago Title employs some of the brightest talent in the industry in title and escrow officers, underwriters, closers and legal counsels.

Website

Commonwealth Land Title Insurance Company

Commonwealth's national commercial services operations serve as a one-stop shop, providing best-in-class CRE services in title insurance, escrow and closing, construction disbursing, special projects, 1031 property exchanges, UCC Insurance, land trusts and more.  The offices are strategically located throughout the country and are equipped to meet the specific needs of commercial clients in all 50 states.

Website

Fidelity National Title Insurance Company

Fidelity National Title Insurance Company has been a trusted partner for residents and real estate investors from coast to coast for the past 160 years.  As a member of the Fidelity National Financial family of companies, all services are customized to accommodate clients' needs and Fidelity can handle escrow deals in every jurisdiction in the nation.

Website

Contact: Brian Maughan | brian.maughan@fnf.com

 

 

Who Does What: The ACREL Executive Staff

Many Fellows have inquired about who does what in the ACREL office.  Click here for more information on how responsibilities are divided between Julie and Caitlin.

Julie Burgess

Director of Membership

Caitlin McGrew

Director of Programs

 

 

In case you missed it: Notice Provisions from the Acquisitions Committee

This report will highlight some of the questions raised during the May 11 meeting of the Acquisitions Committee regarding notice provisions. Hopefully, this report will get more attention than notice provisions have received historically. The current pandemic has brought home the fact that many notice provisions are both outdated and dysfunctional.

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