|Thursday, September 20, 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, firstname.lastname@example.org
--ACREL Communications Committee
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Our 40th Anniversary meeting in New Orleans is fast approaching. With just over one month to go, we are nearing record registration of more than 450 Fellows and guests. It’s not too late to register and be part of the fantastic educational program and join the celebration of ACREL and the 300th Anniversary of the Crescent City. The city has been rocking and rolling all year, but the Tricentennial celebration continues apace in the French Quarter and all over. Don’t miss the special opportunity to enjoy the fine food, amazing jazz and many other wonderful happenings of The Big Easy.
To read the rest of Jay's Message, click here.
Diane C. Tillotson
The 2018 Richard B. Johnson Award will be presented to Diane C. Tillotson during the Real Estate Bar Association for Massachusetts' Annual Meeting. Diane is a Partner at the Boston office of Hemenway & Barnes, LLP, and a past-president of REBA. This lifetime achievement award recognizes the recipient's outstanding and selfless contributions to advancing the practice of real estate law.
Check out which ACREL Fellows were named "Lawyer of the Year" in the latest edition of Best Lawyers in America.
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 18-21, where we will celebrate the 40th Anniversary of ACREL. Click here for meeting information and the online registration form. Registration fees increase on September 22. And, in case you missed it, click here for the dine around list for Saturday, October 20, which was released last week.
ACREL Cares in New Orleans
A message from Chair, Adam Weissburg
STAY WOKE PEOPLE.
Ok, now that I’ve got your attention, with New Orleans around the corner, time to remind you of our two day build. We have 30 volunteers for Saturday and 40 for Friday so plenty of room if you’re interested. We (all of Cares’ types) promise you an amazing, if a bit back breaking, work project that will leave you revitalized. Best part, you’ll get to spend time bonding with some of your ACREL friends and maybe a few you’ve never met before. Win win. To sign-up, please e-mail Caitlin McIntire.
Earlier in September, a small group of Ohio Fellows met for lunch during the Ohio State Bar Association Meeting. The group had a robust discussion on nominations for new ACREL Fellows. The group included Ed Horejs, Sheila Nolan Gartland, Steve Buchenroth, Ken Kuehnle and Dusty McCreary.
ACREL Fellows from Washington State got together on September 13th in Seattle for some fun and fellowship. From left to right: Mike Barrett, Gordon Tanner, Tim Osborn, Joe McCarthy, Gary Fluhrer, Steve Bender, Shannon Skinner, Seth Katz and Scott Osborne.
Blockchain and Real Estate: How is this Technology and Crypto Currencies Being Employed in Real Estate Transactions?
Alexandra R. Cole, Perkins Coie LLP, Chicago, IL
There has been a great deal of interest in and “hype” about blockchain technology, Bitcoin and various crypto currencies. As a result, it is difficult to decipher what one needs to know about the relevancy of this technology for real estate practices. Blockchain is an extension of the internet technology you use every day. READ MORE >>
Unauthorized Practice of Law ... Ohio Guidance? With Regard to Application of Alice Auclair Jones
Andrea Geraghty and Laura M. DeGeer, Meyer, Unkovic & Scott LLP, Pittsburgh, PA
A matter currently before the Ohio Supreme Court raises a troubling question about the unauthorized practice of law. If a lawyer is working while physically located in a jurisdiction where that lawyer is not licensed, is the lawyer committing the unauthorized practice of law? READ MORE >>
Minnesota Adopts CIC Amendments Addressing Construction Defect Litigation
Timothy J. Hassett and Molly A. Gherty, Felhaber Larson, Minneapolis, MN
Minnesota adopted what many view as “development friendly” amendments to its Common Interest Community statute, which governs the development and operation of CICs. When first proposed, the amendments were given little chance of passage. However, a last minute compromise between Minnesota’s Democratic governor and the Republican-controlled legislature resulted in their adoption. READ MORE >>
Safety for Bankruptcy Remote Entities After Franchise Services?
Kenneth P. Kreider, Keating Muething & Klekamp PLL, Cincinnati, Ohio
“No statute or binding case law licenses this court to ignore corporate foundational documents, depriving a bona fide shareholder of its voting rights, and reallocate corporate authority to file for bankruptcy just because the shareholder also happens to be an unsecured creditor.” While sounding like an endorsement of golden shares, a careful reading of the case will not be of comfort to structured finance creditors. READ MORE >>
Old Wine in New Bottles: Plans for Innovation & Practice
Benjamin W. Lund, Brann & Isaacson, Lewiston, ME
As some of our readers may have noticed, after the last annual meeting in Los Angeles, the committee formerly known as Practice Technology has a new moniker—Innovation & Practice. “Why change?” you might ask. Coincidentally, that’s the right question.
READ MORE >>
Legal Opinions in Loan Assumption and Modification Transactions
Lydia C. Stefanowicz, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey
One area of opinion practice for which there is little or no specific guidance in the form of bar reports, treatises or articles in legal publications is third-party closing opinions issued in connection with the assumption of a loan by a person not party to the original loan transaction or the modification of the terms of a loan after the closing of the original loan transaction , although such transactions are common and opinions are frequently required of counsel to the loan parties. READ MORE >>
Liquidated Damages Project: Hawaii
Raymond S. Iwamoto, Schlack Ito, Honolulu, HI
Members of the Acquisitions Committee of the American College of Real Estate Lawyers are examining certain questions regarding the topic of “liquidated damages” in their respective jurisdictions. The focus is on commercial real estate contracts and the enforceability of liquidated damage clauses in commercial real estate contracts that provide that, in the event of default by the Buyer, the Seller is entitled to retain a liquidated damage amount, usually the deposit, as liquidated damages. The Hawaii appellate courts have not yet provided answers to many of these questions. READ MORE >>
Liquidated Damages in Delaware
Robert J. Krapf and Sara T. Toner, Richards, Layton & Finger P.A., Wilmington, Delaware
Most contracts for the purchase and sale of commercial real property include among the remedies for breach a provision for the seller to receive or retain the contract deposit as liquidated damages for the purchaser's breach. At times, the contract will also provide for other remedies, whether damages or equitable relief (e.g., specific performance), in addition to the liquidated damages remedy. Including other remedies in the same contract can result in a court having to sort out the extent to which the different remedies are available to the non-breaching party and are not precluded on the basis that other remedies are available.
READ MORE >>
An Overview of Public Private Partnerships and Secrets for Making the Deals Work
Lee A. Weintraub, Becker, Fort Lauderdale, FL
Although relatively new to the United States, public private partnerships, a method of delivering public facilities and infrastructure through partnerships between public and private sector participants, have long been a favored delivery method in Europe, Canada and Australia. People in those regions questioned why America did not deliver more public facilities using this method, but America, as a wealthy nation, has always had the necessary funds to develop and maintain public facilities. But there is nothing like a Great Recession to generate great new ideas. 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.
Federal Flood Insurance: Inundated with Unresolved Issues
Anthony D. Todero, Baird Holm LLP, Omaha, NE
The National Flood Insurance Act of 1968 created the National Flood Insurance Program (the “NFIP”), and the program celebrated its 50th anniversary on August 1, 2018. The general purposes of the NFIP are two-fold: (1) to offer flood insurance to properties in areas prone to flooding, thus transferring financial risks from property owners to the federal government; and (2) to reduce the risk of flooding through the development of floodplain management standards, thereby reducing federal expenditures on disaster assistance.
READ MORE >>
New York City Bar Formal Opinion 2018-4:
Duties When an Attorney Is Asked to Assist in a Suspicious Transaction
The New York Rules of Professional Conduct (the “Rules”) prohibit a lawyer from knowingly assisting a client’s crime or fraud but do not explicitly address a lawyer’s duty when the lawyer merely has doubts about the lawfulness of the client’s conduct; nor do the Rules explicitly require a lawyer to investigate in such circumstances in order to ascertain whether the legal services would in fact assist a crime or fraud before assisting the client. Nevertheless, when a lawyer is asked to assist in a transaction that the lawyer suspects may involve a crime or fraud, a duty of inquiry in some circumstances is implicit in the Rules.
READ MORE >>
In appreciation of their support, we have invited our sponsors to share with us, for publication in News & Notes, information on services they provide or can provide to our Fellows. In many cases, our Fellows and their firms and companies already do business with our sponsors but may not be aware of the full range of services that are available. We begin this month with a submission from CT Corp.
Specialists Add Value at Every Step
Contributed by ACREL Gold Sponsor:
How do you know when bringing on an alternative legal services provider is the most efficient course of action? Two of the most oft-cited reasons are, to give your firm instant access to specialized expertise that it may not have, and to handle work involving repetitive tasks that require high levels of accuracy.
READ MORE >>
Notice of Proposed Bylaws Amendments
(to be voted on by the Fellows at the Business Meeting in New Orleans, October 20, 2018)
The Board of Governors has determined to recommend certain changes to the Bylaws as outlined in the memorandum from Ken Jacobson. The revised Bylaws are hereby submitted to the ACREL membership for approval, in accordance with Article IX of the Bylaws.
Nancy R. Little,
Click here to read Ken Jacobson's memorandum.
Click here to read the proposed revisions to the bylaws.
Nominations are Open
Submit your nominations today! Please consider nominating a candidate for membership in the College during the 2018-2019 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. For more information please visit the Nominations page.
Have you updated your head shot for the ACREL Directory?
As we are preparing the 2019 ACREL Directory, we have already received more than 50 updated head shots! This photo is not only used in the directory, but on the website and meeting app, so please make sure we have your newest picture on file! To update this picture, please e-mail it to Caitlin McIntire.
Our 2018 ACREL Sponsors