Thursday, September 12, 2019

Welcome to the ACREL News & Notes!  It is published 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,

--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 nominations are open!  The nominations are open!  (Channeling my inner Steve Martin.)  We’ve had a good run of sizable, quality classes of new Fellows the past few years and, under Pam Westhoff’s leadership of the Member Selection Committee AND, very importantly, with help from all of us, that tradition will continue for the class of 2020.  Please do your part.  Thank you.


Montreal.  As of today, 279 of you and 132 guests, including 37 New Fellows and a ton of mentors, have registered for the upcoming meeting in Montreal. This is a fantastic turnout! Let’s enjoy each other, learn something, and have some fun.


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





Jack Fersko


Jack Fersko served as the Editor in Chief for the Commercial Real Estate Transactions in New Jersey, a comprehensive 3-volume treatise that has just been published in its 4th Edition by the New Jersey Institute for Continuing Legal Education.  Other ACREL Fellows who contributed include Anne Babineau, Russell Bershad, Martin Dowd, Lawrence Fineberg, David Gordon, Michael Rothpletz, Jr. and Steven Tripp.


Diana C. Liu


Diana Liu, along with fellow members of the Association of Asian American Investment Managers, had the opportunity to ring the closing bell of NASDAQ last Tuesday, September 3rd.   Diana has served as a member of AAAIM since 2010 and a Board member since 2015 - she even made her way to the Times Square Jumbotron!


Beth H. Mitchell


Beth Mitchell was recently named President-Elect of the American College of Mortgage Attorneys. ACMA, founded in 1974, aims "to provide the best environment in North America for preeminent private practice and in-house commercial real estate finance lawyers to develop professional excellence, trustworthy national business networks and lasting collegial relationships."



David E. Schwager

David Schwager, from the ACREL Class of 2018, began a two-year term representing the Pennsylvania Bar Association in the American Bar Association House of Delegates at the conclusion of House of Delegates meeting at the ABA Annual Meeting in San Francisco on Aug. 13.


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

Share with us today on the ACREL LinkedIn group!



2019 Annual Meeting: Montreal

October 17-20, 2019


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Educational Spotlight: 

Operating Behind the Eight Ball: Queuing Up for Workouts in the Age of Capital Stacks


Working out the restructuring of a single real estate mortgage loan, or of the increasingly multi-tier capital stacks common in real estate finance today, is a delicate dance, informed by the hard-won experience of both the depths and heights of the last decade.  This panel will discuss the preparation lenders, borrowers and servicers need to do for productive workout discussions; how the differences among types of projects, types of lenders and types of loans drive different outcomes; the role played by various stakeholders in CMBS versus portfolio loans; areas of risk for those stakeholders in workouts; and current paradigmatic resolutions for assets in financial distress.  All this will be undertaken in the context of hoping not to get there any time soon, while planning that we will.


Click here to register for Montreal.




ACREL and ALI Present:

When the Owner Won't or Can't Sell: Alternative Real Estate Acquisition Methods

September 12 @ 1:00 pm EST 


For all questions please contact Jaimee Taibi by email or 215-243-1654.


Have you ever needed a particular property for your project, but the owner won’t or can’t sell? This program examines alternatives to the traditional negotiated purchase and sale agreement as a means of acquiring property when the owner is unwilling or is prevented from selling. We look quickly at a list of alternative creative methods, and then focus in detail on three different types of loan-to-own approaches, which may be particularly useful in the next economic downturn.



Thomas F. Kaufman, Montfort Fiduciary Advisors LLC, Arlington, Virginia

Danna M. Kozerski, Coblentz Patch Duffy & Bass LLP, San Francisco, California
F. Thomas Muller, Manatt Phelps & Phillips, LLP, Los Angeles, California
Steven L. Wilner, Cleary Gottlieb Steen & Hamilton LLP, New York, New York



Be sure to use ACREL discount code ACRELCB for a 50% discount.


Click here to register.


Risks in Property and Casualty Insurance Every Real Estate Lawyer Should Know

September 26 @ 1:00 pm

Call-in number: (877) 549-4581
Conference Code: 4778636707


Do you ever feel at a loss as to which losses are covered or excluded by which insurance policies, as to which parties are covered, or as to what language you can include in your documents to ensure the policies obtained by your clients’ counterparties adequately protect your clients? Then this is the program for you! This program will explain what your loan and lease documents need to provide to protect your clients against property damage and liability claims. It will walk you through key issues regarding covered amounts, debris removal, ordinance or law, coinsurance, income coverage, flood insurance, parametric insurance, self-insurance and much more. What are the differences between a mortgagee clause, lender loss payable clause and loss payable clause? Listen in and have an opportunity to ask your questions!


John P. McNearney, Polsinelli, St. Louis, MO
Charles E. Comiskey, RiskTech, Inc., Houston, TX

Gisela M. Munoz, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL


What Works for Me
Richard J. Sobelsohn, Cohen Brothers Realty Corporation, New York, NY

For those Fellows interested in law school adjunct faculty positions, practical education is hot. For more than a decade, I have been successful in teaching upper-level doctrinal courses imparting practical, rather than theoretical, knowledge to my students. There are plenty of law schools today that rely on this type of pedagogy, not just to satisfy ABA requirements, but also to meet market demands (those from students and law firms alike). It is incumbent upon all faculty to keep in mind that once a theoretical base is instilled in our students, that they will need to have basic practical skills to hit the ground running when they begin their practice.     READ MORE >>


Well Isn’t That Termination Convenient?

Wm. Cary Wright, Carlton Fields, Tampa, FL

P3s have gained traction in the last decade as a unique project delivery method utilized by public government agencies to construct various types of revenue producing pubic facilities. In short, a P3 involves a government agency partnering with a private sector entity, typically a developer, to jointly design, build, finance, operate, and maintain a public facility. These partnerships are common for transportation projects, namely toll roads, but are also employed in a variety of industries including energy, public works, technology infrastructure, and water/wastewater infrastructure.   READ MORE >>



You Want WHAT Opinions From Us??


Dear Fellows —Almost all of us have all been there.  It’s a few days before the scheduled closing of a large, complex transaction that has been going on for months.  Quite some time ago you had asked opposing counsel what legal opinions will your firm be asked to give at closing.  Now you open an email captioned “Form of Closing Opinion” and start to read the 22 (or 32, or more) opinions that are listed on their form, with no qualifications, assumptions, or limitations included.  You nearly gag.  First, it would take weeks to do the due diligence for all of these opinions.  Second, at least half of them don’t even sound like legal opinions; they are instead broad factual representations or black letter statements of law.  And they include matters that are covered by the law of jurisdictions other than your firm’s practice jurisdiction(s).  What do you do?


For laughs, and for the value of sharing your experiences with other ACREL Fellows, we’d like to hear your “war stories” of the worst and most inappropriate opinions you have been asked to issue, and how you handled them without derailing closing.  The best of the worst will be published (without attribution) in an upcoming issue of ACREL News & Notes.


Remember that the more of these outrageous and inappropriate requests that we expose publicly for what they are, they less likely it is that you and your ACREL colleagues may asked for them in the future!


Send your stories to Lydia Stefanowicz, and Rhonda Jolley,


“Maryland, Make Room for More Hotel Managers: Will IHG v Tishman Mobilize a Mass Migration of Hotel Managers to Maryland or is the Maryland Statute Applied Therein Unconstitutional?”
Gisela M. Munoz, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL 
For many years, Maryland law has been favorable to hotel managers, and some of the largest, most well-known, hotel management companies have chosen to have their management agreements governed by the laws of Maryland. Today, the question is whether more management companies will want a nexus to that state in order to provide that Maryland law governs their management agreements, in the wake a recent decision, where a Maryland statute played the key role.       READ MORE >>


Leasing Considerations in Redevelopment Projects
Tandy C. Patrick, Bingham Greenebaum Doll LLP, Louisville, KY

The traditional shopping center came into prominence in the 1960’s; many baby boomers have vivid memories of their first visit to the brand new “indoor mall.” Now, sixty years later, owners, operators and tenants of shopping centers continue to address challenges with the revitalization of existing shopping centers, with the end goal of ensuring that the shopping center is vibrant, competitive and sustainable and meets the public needs.   READ MORE >>


The articles below are 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 Tennessee

Kenneth (Pete) Ezell Jr., Baker, Donelson, Bearman, Caldwell, & Berkowitz, PC, Nashville, TN

It is common for parties to commercial real estate purchase and sale agreements to include a liquidated damages provision, usually for a breach of the PSA by the buyer. There are not very many Tennessee cases addressing the enforceability and effect of liquidated damages provisions in PSA's and of the few that do, some are quite old. Most of the recent Tennessee cases addressing liquidated damages involved employment agreements. This article will explore a variety of issues that are or could be presented by liquidated damages provisions in PSA's.  READ MORE >>


Liquidated Damages in Indiana

James H. Schwarz, Taft Stettinius & Hollister LLP, Indianapolis, IN

Indiana real estate purchase agreements often contain provisions allowing for the remedy of liquidated damages in the event of a default by the Buyer. A liquidated damages clause provides for the forfeiture of a stated sum of money upon a breach of contract. In most cases between sophisticated real estate parties it is stated as an exclusive remedy, with the seller waiving the right to sue for damages or specific performance. In some real estate purchase agreements the seller requests the right to elect to either retain the earnest money as liquidated damages OR exercise any other remedy available at law or in equity. 



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




ACREL is fortunate to have seventeen sponsors for 2019.  Their support defrays the cost of the ACREL Directory and helps to support other initiatives of the College.   Many ACREL Fellows already work with one or more of our Sponsors.  If you do, please take a minute to thank your contact at the Sponsor for their support.  If not, take this opportunity to become familiar with their products and services.       


If you need additional contact information for any Sponsor, contact Julie Burgess in the ACREL office at or (310) 816-9811 and she can provide phone and email contact for each of our sponsors.





Contact: Clay Hammerstein | 213-613-3055 |

CBRE offers a broad range of integrated services, including facilities, transaction and project management; property management; investment management; appraisal and valuation; property leasing; strategic consulting; property sales; mortgage services and development services.



GOLD SPONSOR: Stewart Title Guaranty Company

Contact: Mary Ann Reynolds-Wilkins | 713-232-4402 |

Mergers and acquisitions, portfolio dispositions, changing legal requirements and customer service demands – your everyday business environment is complicated. Stewart Title Commercial Services is here to simplify your transaction. As your single point of contact, we’ll provide all the services you need – regardless of the number of properties or their location.





Nominations for New Fellows are Open!


As summer 2019 comes to a close, ACREL is entering its annual membership selection process which will culminate in selection of new Fellows by the Board of Governors at its meeting in Charleston in Spring 2020.  Please consider nominating a candidate for membership in the College during the 2019-2020 nomination cycle.  By nominating a candidate, you will make a meaningful contribution to ACREL’s efforts to stay vibrant and relevant by adding new, well-qualified ACREL Fellows. 


Click here for more information.



Report of the Nominating Committee

for the 2020 Board of Governors & Officers


We are pleased to release the report of the 2019 Nominating Committee, thanks to the hard work and diligent efforts of this year's committee, led by Jay Epstien.  


Click here to view the report.



























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