Wednesday, March 20, 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!



I know that cold weather, etc. revisited too many of you since last month’s message – I’m delighted to report that those things are not allowed in the Palm Desert area, so they must be getting smaller by the minute in your rearview mirror. We will raise a glass to the vernal equinox!

La Quinta. As of today, 212 of you, and 92 spouses/guests, will join us in La Quinta. I surely hope that most of you will be there in time (4 p.m. Thursday) to see a fantastic Special Session: Out with the Old, In with the New? – Evaluating the Costs and Benefits of Gentrification. And that’s just to kick start a fantastic program that Jack Fersko and the Programs Committee (and, of course, Art Menor and other predecessors who “touched” this Program in the 18 months or so it’s been in planning) have put together for us. And don’t forget – this is our special time to say goodbye and Thank You to Jill Pace, to acknowledge her 32 years of extraordinary leadership of the College.


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




J. Casey Pipes


In early March, Casey Pipes, President of Helmsing, Leach, Herlong, Newman & Rouse in Mobile, Alabama, was elected to the board of directors for the Owners' Counsel of America, which focuses on eminent domain and rights of private property owners.  Casey is an ACREL Fellow from the Class of 2018.



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

Share with us today on the ACREL LinkedIn group!



2019 Mid-Year Meeting: La Quinta

We are looking forward to seeing everyone in La Quinta next week at the Mid-Year Meeting.  Registration numbers are higher than expected and we are thrilled that so many Fellows and guests will be making the trip to sunny California.   If you are attending, make sure to download the mobile app for the most up-to-date meeting updates.


If you are interested in participating in a group run in La Quinta (or future meetings), please email to be added to the list of ACREL runners.



Upcoming eCLE Programs



ACREL and ABA/RPTE Present:

How to Navigate the Rabbit Hole:  The Journey of a CMBS Loan After It Closes

April 3 @ 1:00 pm EST 


For all questions, please contact Khadijah Kellogg or 312-988-5260.  


Click here to register.


Congratulations - you just closed your first CMBS loan! Now your client asks you to assist her in getting a lease approved, transferring membership interests, selling the property, or commencing workout negotiations. How does she know whether to talk to the Master Servicer or the Special Servicer, and what is the difference anyway? What are REMIC rules, and how do they affect what she wants to do? The panelists will explain how some of the most common post-origination matters are handled. They will provide insight into the concerns and requirements of the Master Servicer and the Special Servicer. They will also share their recommendations for efficiently achieving the desired results.



ACREL & ALI Present:

Drafting Waivers of Subrogation in Commercial Leases:

Making the Shoe Fit For Landlords and Tenants


April 10 @ 1:00 pm EST 


For all questions, please contact Jaimee Taibi.  


Click here to register.

Make sure to use the ACREL discount code: ACRELCA19

Join us for a discussion of the provisions that can make or break a landlord’s or a tenant’s budget when bad stuff happens to or in a commercial building or elsewhere on the landlord’s property, regardless of who is at fault. Topics to be covered will include risk allocation between landlord and tenant in absence of contractual provisions, the tripod of contractual response (indemnities, liability and property insurance, and waivers of subrogation), bad industry waiver of subrogation provisions and self-insurance and waivers of subrogation.




Who’s That Sleeping on Our Couch: 

The Impact of Short Term Rentals on Real Estate Law

April 17 @ 1:00 pm EST 


Click here for more information.


Our panelists will explore the world of short term rentals:  what constitutes appropriate regulation, updates on recent regulatory battles, who the stakeholders are, and what lawyers representing hosts, landlords and HOA’s need to think about in advising their clients.


There is no registration for this telephone conference, and no CLE credit will be provided.  Although ACREL asks that you refrain from sending out a blast email to your mailing list or to another professional association, you are welcome to share the program with your firm colleagues or a few clients by gathering them in a conference room to listen.  If you do gather others, we would appreciate a report to the ACREL office (via an e-mail message) of how many listeners attended via your connection.


Call-in number:       (877) 549-4581

Conference Code:    4778636707





Can a Secured Creditor Enforce a Lien on Real Estate Even When Its Bankruptcy Claim Has Been Disallowed?
Manuel Farach, McGlinchey Stafford PLLC, Fort Lauderdale, FL

In an opinion that appears to give lenders some breathing room, the Ninth Circuit Bankruptcy Appellate Panel held the answer is “yes.”  Specifically, the Lane court held that a debtor cannot use 11 U.S.C. section 506(d)1 to avoid a secured creditor’s lien on real estate even if debtor’s objection to the claim was sustained by the bankruptcy court. In other words, the lien on real estate is not eliminated just because the bankruptcy claim was not sustained by the bankruptcy court.       READ MORE >>


Pop-Up Hotels to the Rescue
Michael D. Goodwin, Arnold & Porter, Washington, DC

A significant cost of developing a new multifamily project is carrying the project from completion through stabilization. Pop-up hotels - one of the newer manifestations of the “sharing economy” - offer multifamily developers the opportunity to transform what is typically a period of negative cash flow into a money-making opportunity.   READ MORE >>


Ground Rent Disasters and Some Possible Ways to Prevent Them
Joshua Stein, Joshua Stein PLLC, New York. NY

Tenants under long-term ground leases have recently suffered huge losses because of ordinary and traditional rent reset formulas that adjusted the ground rent to equal the current value of the leased land, considered as if vacant, multiplied by a constant such as 6% or 7%. That type of formula made sense when commercial real estate capitalization rates, an important element in determining land value, were not as low as they are today.     READ MORE >>




Finding Good Real Estate Investments in Opportunity Zones: It's Not Just Location
Anne S. Babineau, Wilentz, Goldman & Spitzer, P.A., Woodbridge, NJ

Authors draw on early experience with Opportunity Zones and long term familiarity with successful redevelopment projects to spot the challenges to finding and structuring the right Opportunity Zone project and practical realities that savvy investors and their counsel should consider.  Although written with projects in New Jersey in mind, their article highlights these realities and reminds us that where Opportunity Zone investment is concerned, it is not just location, location and location that makes for a successful project.    READ MORE >>


Investing in Qualified Opportunity Zones: Background on the Law and Application of the Law to a Hypothetical Project
Joseph M. Hernandez, Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, FL
On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act of 2017, comprising the most aggressive tax reform legislation since the Tax Reform Act of 1986.  TCJA has been criticized by some as a partisan giveaway and praised by others as a pro-growth proposal. Yet, perhaps lost in the wake of the political banter and posturing related to TCJA’s more prominent features (the restructuring of tax brackets and the repeal of certain state and local tax exemptions), is a new economic development tool known as Opportunity Zones, designed to encourage private investment and economic growth throughout many of our country’s most economically distressed areas.    READ MORE >>


Public Private Partnership (P3) Transactions Lead to QOZ Investment Opportunities
Alan S. Ritchie, Thompson Hine LLP, Cleveland, Ohio
For Qualified Opportunity Zones investors seeking opportunities, the intersection of QOZ and Public Private Partnership transaction structures may be where the proverbial “X” marks the spot on the buried treasure map. Both so-called “social-infrastructure” and “transportation-infrastructure” P3 transactions are easily, and perhaps naturally, located within areas recently identified as QOZ. As a result, investors can benefit from the tax and financial incentives relating to these zones, thereby structuring transactions with lower revenue models while maintaining required return thresholds. 



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 Oregon Commercial Real Estate Transactions
Mark A. Manulik, Schwabe, Williamson & Wyatt, Portland, OR
As part of the national survey of state laws pertaining to the analysis and enforcement of liquidated damages clauses in commercial real estate transactions being conducted by the Acquisitions Committee, this article examines the principal Oregon judicial decisions relevant to the enforcement of such clauses and some selected issues presented by the ACREL Acquisitions Committee for inquiry.  READ MORE >>

Liquidated Damages Issues in South Carolina Purchase and Sale Agreements
Edward G. Menzie, Nexsen Pruet, LLC, Columbia, South Carolina
In 2018, the Acquisitions Committee began focusing on the treatment of liquidated damages provisions in real estate purchase and sale agreements, particularly under what circumstances liquidated damages might not be the exclusive remedy for a buyer default.This article attempts to answer the 13 questions under South Carolina law and suggests that a careful review is required as to all liquidated damages provisions because minor changes in language may result in surprising consequences in an adversarial situation.   



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.


Opportunity Zones: Whose 'Opportunity' Is It Really?

Orginally published in Law 360 on January 3, 2019


"The opportunity zone tax legislation is receiving major attention in the real estate industry. Experts predict there will be a substantial amount of capital that will be deployed in this space in the coming months. An opportunity zone, or OZ, is an economically distressed community where new investments, under certain conditions, can qualify for tax breaks. The U.S. Treasury Department designated nearly 9,000 census tracts as OZs across urban and rural areas throughout the United States. It is estimated that approximately 35 million Americans live in OZs, which have higher poverty and unemployment rates than the rest of the nation. Opportunity zones are called “opportunity zones” because they are supposed to provide opportunities to the residents as well as the investors. But the question remains how well will the OZs help improve the quality of life of those living in the disadvantaged neighborhoods once development starts to pour in. Will the new capital lead to gentrification? How could current residents participate in the improvement of their communities thanks to OZ-fueled investments?"  READ MORE >>


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.


GOLD SPONSOR: CT Corporation


Contact: Zach Carhide | 855.316.8948 |


CT Corporation is the highest quality provider of corporate business compliance solutions and registered agent services for the REIT industry.  Our expertise and unparalleled service allow us to offer a powerful suite of real estate transaction solutions including: comprehensive public record and UCC search and filing services, mergers and acquisitions support, secured lending and structured finance assistance, and international compliance services.  We enable our customers to make smart decisions and effectively manage the complexities of their business requirements.    Visit us at  CT is part of Wolters Kluwer, a market-leading global information services company.




GOLD SPONSOR: Old Republic National Title Insurance Company



Contact: Constance Smith | 713.789.0680 |


Headquartered in Tampa, FL, Old Republic Title Insurance Group has built a solid reputation as an industry leader and is one of the largest title insurance groups in the United States. We operate through a national network of Company-owned offices, affiliates, authorized agents and approved attorneys. To secure safe and efficient real estate transactions, we provide comprehensive title and escrow products and services for businesses and government. Since 1992, no other title insurer has had higher overall ratings than Old Republic Title.




Join the ACREL LinkedIn Group


In honor of my predecessor, Jay Epstien (a/k/a El Presidente), I hereby remind you to join the ACREL LinkedIn Group.  It’s easy – simply go to LinkedIn and search for the American College of Real Estate Lawyers Group.   To keep the group private, you must first ask to join and then be accepted by the ACREL office.   Don’t miss out on the fun that we plan to have inside the group in the coming months.                  - Steve Waters


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