Monday, May 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


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Whoa, it’s already May!  Time flies and, sometimes, things change.  Even things you never expect to change, like Jill Pace as our Executive Director.  Double whoa! (But, do know that Julie and Caitlin have been doing a superb job keeping the trains running, and on time.)  

La Quinta.  As 205 of you (and 91 guests) know (great turnout for a spring meeting location like this one that’s a bit harder to get to), in La Quinta at the end of March we had great weather, great food and wine (having the main event at dinner on Friday, following the initial test in New Orleans, seems to have been well-received again), great company, and an overall great time, starting on Thursday with a great Special Session:  Out with the Old, In with the New? – Evaluating the Costs and Benefits of Gentrification. And that was just the start of a great program that Jack Fersko and the Programs Committee (and predecessor Programs Committee planners) put on. Terri Simard and Jane Smith put on a great workshop on “Unconscious Bias” which about 50 of us benefited from greatly.


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




It is with great sorrow we inform you of the passing of a Fellow of the College. 

 Our thoughts are with his family, friends and colleagues.


Craig S. Biesterfeld

St. Louis, MO

November 6, 1954 -May 20, 2019

ACREL Fellow since 2000



David E. Schwager


David Schwager will become president-elect of the Pennsylvania Bar Association at the conclusion of the association’s Annual Meeting, May 17, in Lancaster. He will become the association’s 2020-21 president. Schwager was inducted into ACREL as a New Fellow in 2018.

Jane Snoddy Smith


Jane Snoddy Smith was featured in the April Issue of Law 360 for her thoughts on the global perspectives and trends showcased at Marché International des Professionnels d'Immobilier, a recent international property conference in France.  To read more click here (you must have a Law 360 subscription.) 



Gordon Tanner


As many of you know, faithful meeting attendees, Gordon and Julie Tanner, have embarked on a new adventure in New Zealand, where Gordon has taken a position with their church.  They have started a blog, where you can follow along on their adventures.



Pamela L. Westhoff


On May 30, Pam Westhoff will be honored at the Los Angeles County Bar Association Real Property Section's Installation and Awards Dinner.  She is being receiving an award, recognizing her as an "Outstanding Real Estate Attorney."  The dinner will take place at Hotel Indigo in Los Angeles.



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



What a great meeting in La Quinta - a fun time was had by all who made the trek out to the desert in March.  Thank you to all of our speakers and attendees for making this such a great meeting!  Click here to view the La Quinta photo gallery.  If you have any other pictures that you'd like to share, please email


ACREL Gatherings



Many Fellows gathered at the ACREL/RPTE Reception in Boston, during ABA/RPTE's Spring Symposium.  Thank you to Frank Burt of Boston Properties, Inc. for arranging the space.  What a great turnout!



Game On: The Delaware LLC Act Amendments Are in Play!

June 11 @ 1:00 pm EST 


More information coming soon!  No registration is required.



ALI Presents: Commerical Real Estate Leases 2019

June 13-14, 2019 | In-Person and Webcast


In collaboration with American Law Institute Continuing Legal Education (ALI CLE), ACREL is offering a special discount for Fellows and their colleagues who attend ALI CLE’s Commercial Real Estate Leases 2019June 13-14, 2019, in Boston or by video webcast. This course teaches you how to stay a step ahead and fine-tune your skills and techniques in a world of changing markets, evolving leases, and advancing technology.


Register for this in-person course or full webcast online, and save $300 off the regular tuition when you use coupon codeACRELCA017 at checkout (Valid on new registrations only; may not be combined with other offers, including group discounts.)


We encourage you to take advantage of this special offer and to share the savings with a colleague! If you have any questions, please contact Jaimee Taibi at




Opinions Reports Continued: U.C.C. 
At long last!  The report on (and named) Uniform Commercial Code Opinions in Real Estate Finance Transactions is being published in Volume 53 No. 2 of the Real Property, Trust & Estate Law Journal (Fall, 2018, cited as 53 REAL PROP. TR. & EST. L.J. 163), to be available to ABA Section members in print form about mid-April 2019.  A copy of the U.C.C. Report, as it appears in the Journal, will be posted in the ACREL Attorneys’ Opinions Committee website in a downloadable form.  The goal of the report is to provide a knowledgeable basis for opinions and fair warning about matters beyond its scope




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 California Commercial Real Estate 
Danna Kozerski, Coblentz Patch Duffy & Bass, San Francisco, CA 
This article is part of the project undertaken by ACREL’s Acquisitions Committee to analyze on a state-by-state basis the alternative remedies available to sellers for breach of a commercial real estate purchase contract.  This article summarizes California law as to each of the questions posed by the Committee.  



Liquidated Damages Clauses in  Commercial Real Estate Contracts in Connecticut 
Kent S. Nevins, Shipman & Goodwin LLP, Stamford, CT 
Connecticut enjoys a long history of judicial consideration of liquidated damages clauses, dating back to the 1817 case of Riley v. Hartford Ins. Co., where the Connecticut Supreme Court stated that “. . . it is in the nature of liquidated damages, to prevent the necessity of proving them . . .”  While Connecticut courts have differed as to the parity between the construction of residential real estate purchase contracts and commercial real estate purchase contracts generally, it appears that liquidated damages clauses in the context of real estate purchase contracts, whether residential or commercial, are treated the same under basic principles of contract law, drawing heavily upon cases that do not concern real estate. 


Liquidated Damages in Illinois Commercial Real Estate Purchase and Sale Agreements

Mark D. Yura, DLA Piper LLP (US), Chicago, IL
Not surprisingly, the enforceability of liquidated damage provisions has long perplexed Illinois courts.  As stated in one of the landmark cases, “[t]here is no fixed rule applicable to all liquidated damage agreements, and each one must be evaluated by its own facts and circumstances”.  Grossinger Motorcorp, Inc. v. American Natl’ Bank and  Trust Co.  In Grossinger, which was cited in Ravenstar disapprovingly, Grossinger (an automobile dealership) entered into an agreement to purchase unimproved real estate from defendant land owners.  Purchaser deposited $100,000 as earnest money and the agreement conditioned purchaser’s closing obligations upon its obtaining rezoning for its intended operations.  


Acquisitions Committee: Liquidated Damages Project in Louisiana 
Marie A. Moore, Leopold Z. Sher
Sher Garner Cahill Richter Klein & Hilbert LLC, New Orleans, LA 

Generally, stipulated damages are enforceable in Louisiana, and the buyer’s deposit may be retained by the seller as its damages upon the buyer’s breach if the contract permits that remedy.  However, Louisiana Civil Code article 2012 permits a Louisiana court to modify the stipulated amount if the court finds that amount “so manifestly unreasonable as to be contrary to public policy.”   READ MORE >>



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.


In the Aftermath of the Notre Dame de Paris Fire

Originally published in The Rooftop Project in April 2016


In the wake of the tragic fire in France overnight, we are releasing In the Aftermath of the Notre Dame de Paris Fire, the latest in our series of occasional essays under the banner Rooftop Views. The essay is available now by clicking 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.


GOLD SPONSOR: First American Title Insurance Company


Contact: Sally French Tyler | 714.250.3405|

Evan M. Zanic | 412.391.0858 |


First American Title Insurance Company facilitates and streamlines real estate transactions by providing comprehensive title insurance protection and professional settlement services.


First American Title helps homebuyers and sellers, real estate agents and brokers, mortgage lenders, commercial property professionals, homebuilders and developers, title agencies and legal professionals close transactions. Find out more about our products and services, and how First American can help you streamline your transaction and protect your investment.




Save the Date and Renew Your Passport!


The 2019 Annual Meeting will be held from October 17-20 in Montreal.  

Registration and hotel reservations will be available in late June.  Keep an eye out for more information by email.



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




























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