Thursday, August 9, 2018

Welcome to the ACREL News & Notes!  It is published throughout the year and features upcoming meetings, ACRELive presentations, Fellows, and local ACREL events, as well as articles on substantive areas, noteworthy cases and hot topics. We welcome your suggestions! Send ideas to Peggy Rolando,  

--ACREL Communications Committee


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The count-down to our 40th Anniversary meeting in New Orleans continues.  With just ten weeks to go, nearly 400 Fellows and guests have registered, including more than 60 percent of our new Fellows.   Once again, the Programs Committee has done an outstanding job with the educational portion of the meeting.   The meeting will open on Thursday afternoon with a fascinating presentation about the history of the Mississippi River led by two experts who will discuss the engineering, political and societal impacts of one of the most significant bodies of water in the country.   We will continue with a local theme on Friday morning when Michael Rubin explains 500 years of Louisiana history and law in 20 minutes.   Following what is guaranteed to be another entertaining and educational Rubin-esque presentation, we will hear an overview of the national property markets and how risks continue to affect decision-making from one of the leading real estate economists in the country.   You will not want to miss any of these engaging presentations. 


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




Sam W. Irby


New Fellow, Sam Irby, of Irby & Heard, P.C., was installed as the President of the Alabama State Bar at its annual meeting in June.  Click here to read the full press release.


F. Scott Jackson


On June 26, 2018, Scott Jackson, of Jackson Tidus, was inducted into the Homebuilding Hall of Fame in San Francisco, CA.  Founded in 1985, the Homebuilding Hall of Fame is an annual awards gala presented by the California Homebuilding Foundation. The mission is to preserve and honor excellence within the building industry by honoring legendary homebuilding professionals and their accomplishments. 


Michael E. Meyer


Michael Meyer, of DLA Piper, who serves as the President of the Los Angeles County Bar Association, was profiled in the June Edition of Los Angeles Lawyer.  Click here to read the featured profile.


David E. Schwager


New Fellow, David Schwager, of Chariton, Schwager & Malak, was elected Vice President of the Pennsylvania Bar Association in May 2018.  Following his Vice Presidential term, he will serve as President of the state bar from 2020-2021.


Kevin L. Shepherd


American Bar Association President Bob Carlson has appointed Kevin Shepherd, of Venable LLP, to chair the ABA’s Finance Committee for a term of one year, which term began on August 7, 2018.  As chair of the Finance Committee, Kevin will also serve on the ABA’s eight member Executive Committee, which includes the ABA President, President-elect, Treasurer and Secretary.  Kevin will join ACREL Fellow Michelle Behnke from Wisconsin on the ABA’s Executive Committee.  Michelle serves as the ABA Treasurer.



      Biel              Conoly             Spencer            Tabb              Watson      Weatherbie


The 40th Annual Texas Advanced Real Estate Law Course took place August 22-24 in San Antonio, where Harriet Anne Tabb served as Course Director for this meeting.  Several ACREL Fellows were recognized at the conference:


Robert "Doc" A. Watson was honored with the "Distinguished Real Estate Attorney Lifetime Achievement Award" from the Real Estate Probate and Trust Law Section of the State Bar of Texas. 


Frederick J. Biel received the "Jerry Charles Saegert Award for Best CLE Paper" for his article Enforcing Security Interests Under Article 9, Using the Internet.  David Z. Conoly was awarded the "Weatherbie Workhorse Award," which is named for ACREL Fellow, David Weatherbie.  


The Best Speaker Award was renamed in honor of Steven C. Haley, a former ACREL Fellow, who passed away unexpectedly earlier this year.  Richard L. Spencer, a good friend of Steve Haley, offered remarks in tribute to Steve's memory.  David A. Weatherbie was the first to receive the "Steven C. Haley Best Speaker Award," along with attorney Richard Crow.


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

Share with us today on the ACREL LinkedIn group!




2018 Annual Meeting: New Orleans

If you have yet to do so, make sure that you don't miss out on all the fun at the ACREL Annual Meeting in New Orleans from October 18-21st, where we will celebrate the 40th Anniversary of ACREL.  Click here for meeting information and the online registration form. The meeting will be held at The Roosevelt Hotel New Orleans, a Waldorf Astoria property.


Upcoming ACRELive Webinars: August 15 and 21


There is no registration for these telephone conferences, 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.


Call-in number:       (877) 549-4581

Conference Code:    4778636707


The End of Libor

Wednesday, August 15, 2018

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



Lydia C. StefanowiczGreenbaum, Rowe, Smith & Davis LLP, Woodbridge, NJ

Charles J. Wilkes*, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, NJ



Margaret Shea Burnham, Nexsen Pruet, PLLC, Greensboro, NC

*denotes non-ACREL speaker       



The New Well Building Standards: Is This the New Requirement or Just a Fad

Tuesday, August 21, 2018

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



Michael A. Bedke, DLA Piper LLP (US), Tampa, FL

Brad A. Molotsky, Duane Morris LLP, Cherry Hill, NJ

Jim Shimberg*, Strategic Property Planners, LLC, Tampa, FL



Manuel FarachMcGlinchey Stafford, PLLC, Fort Lauderdale, FL

*denotes non-ACREL speaker   



ACREL Gatherings



On July 17, Earl Segal organized the ACREL Annual luncheon for DC, MD and VA Fellows.  The turnout was great, as you can see above, and three of our New Fellows were able to join, as well as the ACREL staff.  Thank you to Earl for organizing this event, yet again, and to Arnold & Porter for hosting at their office. 



As they have done for many years, after the 40th Annual Texas Advanced Real Estate Law Course, the Texas ACREL Fellows gathered for dinner at the Grey Moss Inn in Helotes, Texas, as pictured above.



Drafting Considerations for Alternate Dispute Resolution

Thomas J. Coyne, Thompson Hine LLP, Cleveland, OH

Contractual disputes in the real estate context arise in a variety of settings, including leases, sales transactions, joint ventures and many other scenarios.

As litigation is often an expensive means of resolving disputes, counsel to parties to any real estate contract should consider the advisability of including alternative dispute resolution provisions in such agreements.         READ MORE >>


Optional Liquidated Damages in Arkansas Commercial Real Estate Purchase and Sale Agreements

Timothy W. Grooms and Mary-Tipton Thalheimer, Quattlebaum, Grooms & Tull PLLC, Little Rock, AR

Parties to commercial real estate purchase and sale agreements commonly include liquidated damages provisions whereby the parties agree to the amount of damages a non-breaching party will receive in the event of a breach.  The purpose of this article is to inform sellers about Arkansas law on liquidated damages provisions in commercial real estate purchase and sale agreements.        READ MORE >>


Summary of Secondary Mortgage Market Requirements for Condo Loans

Kenton L. KuehnleAllen Kuehnle Stovall & Neuman, LLP, Columbus OH

Ken Kuehnle has updated his famous matrix summarizing the secondary mortgage market requirements for condominium loans in response to recent revisions to the Fannie Mae and Freddie Mac “Guides”.  Ken has generously shared his matrix with members of the Common Interest Ownership Committee since he first compiled it in conjunction with his presentation at the ACREL Meeting in October 2009 in Washington D.C.  It’s a valuable resource for those who draft condominium documents, represent lenders who finance construction of condominium projects or represent those who package and sell condominium end loans.  Here’s a link to the latest version of Ken’s matrix.           READ MORE >>


When It Pays for Itself, Bring It To Me: ACREL's Office 365

Benjamin W. Lund, Braan & Isaacson, Lewiston, ME

When I was younger, one of my uncles (a non-practicing lawyer and a good negotiator) shared his preferred response to a common sales pitch—that something would “practically pay for itself.”  “Really?” he’d reply.  “Well, when it pays for itself, bring it to me.”  In his view, there was no such thing as a free lunch.  Well, while it’s not exactly a free lunch, one of the ways in which your ACREL fellowship can pay for itself is the access which it provides to a full suite of Microsoft’s Office 365 productivity tools, which can be found on the ACREL Shares! site.    READ MORE >>


If It Floats, Can It Be Real Property?

Anna C. Shimko, Burke, Williams & Sorenson, LLP¸ San Francisco, CA

The term “real property” conjures visions of land, that stuff comprised of dirt and rocks.  So it stands to reason that I, who live with my family on a floating home in Sausalito, California, and pay monthly berth fees to the privately-owned harbor that owns the land beneath our bobbing abode, do not own real estate.  Think again (kind of).  There is a vibrant market for such floating homes, roughly half a million to 1.5 million bucks in my neighborhood and up to 3 million dollars in Seattle (romanticized, of course, by the film “Sleepless in Seattle”.)      READ MORE >>


Gentrification—A Dirty Word?

Frederick D. Strober, Saul Ewing Arnstein & Lehr, Philadelphia, PA

“Don’t Brooklyn My Detroit” is a slogan on T-shirts seen recently in the Motor City.  Anyone familiar with the Brooklyn of the past decade knows what the saying suggests: urban hipsters, rising housing costs, overpriced groceries and lattes galore.  For more than half a century, large swaths of Brooklyn—and cities like Philadelphia and Los Angeles— fell into severe decline, long ignored by urban planners and private developers whose focus was more on downtowns than the neighborhoods which surround them.       READ MORE >>




Aprés LIBOR: Black Swan or Y2K

Joseph P. ForteSullivan & Worcester LLP, New York, NY

Unquestionably, the London Inter-Bank Offered Rate is an integral part of nearly every type of financial product available in the financial markets worldwide, from relatively simple consumer products to the most complex and sophisticated structured commercial products and derivatives in the capital markets.  However, the growing scarcity of actual interbank unsecured term money market funding since 2008 and the growing reluctance other LIBOR panel banks, has led the UK Financial Conduct Authority to publicly acknowledge that "the survival of LIBOR on the current basis...could not and would not be guaranteed" after December 31, 2021.       READ MORE >>


Virginia Supreme Court Requires Formalities of a Deed for Long-Term Leases

Nancy R. Little and Charles L. Menges, McGuireWoods LLP, Richmond, VA 

The Virginia Supreme Court recently found a 15-year lease term unenforceable because the lease was not executed with the formalities of a “deed” in accordance with Virginia law.In Game Place, a retail tenant vacated its premises and attempted to terminate its lease prior to the expiration of a 15-year term. The landlord sued the tenant and its guarantor for unpaid rent.  At trial, the tenant argued the lease was unenforceable because it was not in the form of a “deed” as required by Section 55-2 of the Code of Virginia (the “Statute of Conveyances”). 



Regulatory Takings in the State Courts: 

A Typical Case Offers Valuable Guidance to Lawyers

Gregory M. Stein, University of Tennessee, Knoxville, TN

Those who do not specialize in the area of regulatory takings law are often baffled by it.  For many lawyers, the issues arise only occasionally, the cases are long and difficult to master, and the procedural questions are confusing.  Unless your clients face these issues frequently, you probably do not want to invest the time and energy necessary to master this specific area of the law.  Occasionally, though, a case comes along that does a nice job of summarizing the doctrine in a way that is easy to understand.     READ MORE >> 


Read all of this issue's articles here.



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


Defining Indemnity in the Context of Actual Cash Value Calculations

by Jonathon C. Held and Heidi Hudson Raschke


Introduced by Janet M. Johnson


We spend a lot of time talking about replacement cost insurance in the context of the documents we negotiate on behalf of our clients and talking about how important it is to have replacement cost coverage when a loss occurs.  But we seldom spend any time thinking about how an actual cash value loss is calculated if the client does not replace the damaged property or is limited to actual cash value because, for example, its lender insists on taking the proceeds to pay off a loan secured by the property.  Even if the insured intends to replace the damaged property, the calculation of actual cash value is relevant because it is what the insured will initially receive from the insurance company and have available for use to start to rebuild.  This is because most policies provide that the actual cash value of the loss will be paid by the insurance company (even if the insured intends to rebuild) and the difference between what is paid as actual cash value and the actual replacement cost will be paid to the insured as the restoration proceeds or after the restoration is complete.


The linked article below came to me in an email and I think that it is worth sharing, particularly because it includes a 50-state survey of the rule used (to the extent there is one that a particular state’s courts have articulated) to determine the actual cash value of a loss covered by property insurance and to determine whether labor costs are depreciable in the calculation.     READ MORE >> 



Report of the 2018 Nominating Committee


Under the leadership of Roger Winston, the ACREL Nominating Committee has prepared this report for review of the membership in advance of the ACREL Annual Meeting.


ACREL Summer Games


Beverly Quail at Mt. Etna, Sicily

Beverly Quail shared a photo from her trip to Sicily!


Don't miss out on the ACREL Summer Games -- a simple, fun competition among ACREL Fellows around the country where everyone can share pictures from summer travels and vacations.  ACREL President, Jay Epstien, has already started the ball rolling!

What do I have to do?

  • Take a picture or two of you (and, if you want, friends, family, etc.) from wherever your travels take you this summer (multiple entries are welcome). Share the fun from all the cool places where you might be in the coming months. 
  • Post the picture on the ACREL Private LinkedIn group.  If you are not part of the group today, please do join as this will be the only way to participate in the fun and be eligible to win one of the prizes.
  • When you post a picture, tell us who is in the picture, where you are and some other fun fact of your trip.  Try to send a high resolution and quality photograph.  If you need help posting a picture or have any questions, please email Caitlin at

  • The competition will run through September 15th, giving everyone time to post end-of-summer photos from Labor Day Weekend escapes.  During the summer, we will post some of the pictures in an online gallery on the ACREL Website, so be sure you are happy for all Fellows to see where you are enjoying your summer vacation. 


How do I win?


At the Annual Meeting in New Orleans, we will announce the winners in several categories:  Scenic, Adventure, Fun, Creative and overall best picture (based on the number of likes and comments on LinkedIn.)  So be sure to not only share your photos, but like or comment on those of other Fellows.  We will share a montage of summer travel and adventures with all Fellows joining us in New Orleans, where prizes will be issued. 


Please join the ACREL Summer Games and share a summer picture of you with the rest of the College.


Best wishes to everyone for a wonderful summer break with family and friends. 




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