CLE Seminar
Materials
1997
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American Bar Association - Section of Real Property, Probate and Trust Law - 8th
Annual Spring CLE & Committee Meeting - May 15 - 17, 1997, Washington, D.C.
New Developments in Loan Documentation: Drafting Documents in Light of Changes in
the Bankruptcy and Tax Codes
- Introduction
- Treatment of "Absolute" Assignment of Rents After the 1994 Bankruptcy
Reform Act
- Bankruptcy Proofing Techniques in Loan Documents
- Tax Consequences of Relinquishing Real Property Collateral: Capital Gains and
Cancellation of Debt Income
- Waivers of the Automatic Stay; Springing Obligations Tied to Bankruptcy; and Deprizio
is Dead isn't it?
Managing Generational Diversity; How to Best Impart Information to
Clients, Colleagues, Employees, or Students of Different Ages
- The Drafting and Use of Limited Partnership for Business
- The Battle of the Entities; Entity Selection in a Post Check-the-Box World
Re-Revisiting the LP Act: Don't Fix What Ain't Broke -- or Needed
Reform?
Tenant's Remedies: An Oxymoron
- A Symposium on Representation of Parties & Disclosures in Residential Real Estate
Transactions
- Drafting and Negotiating ADR Clauses
- Second Annual Non-Traditional Real Estate Forum: The Synthetic Lease -- Is it a Lease
or Is it a Loan?
- Strategies for Disposition of Real Estate by The Federal Government
- Department of Interior Regulations & Takings
- Don't Sell or Die Without Landlord's Permission: Lease Restrictions Confounding
Transfers of Business
- Freddie and Fannie Change Uniforms Multi Family Lending Documents
- Commercial Lending Roundtable
- Dealing With Tenants, Troublemakers, and Tough Issues: UCIOA Solutions
New Development in Loan Documentation: Drafting Documents in Light
of Changes in the Bankruptcy and Tax Codes
- The Information Superhighway Hits the Dirt
- Big Issues in Small Construction Contracts
- Why is This Lease Different from all Others
- Anatomy of a Brownfield Redevelopment: Creative Solutions to Environmental
Liabilities
- Lateral Moves: The Ethics of Attorney "Free Agency"
- Tricks of the Trade -- Negotiating Leases for the 21st Century
- Emerging Developments in Hospitality Law
- Yield Maintenance Revisited
American Bar Association - Section of Real Property, Probate and Trust Law - 1997
Annual Meeting - August 3 - 4, 1997, San Francisco, California
Supporting Private Development with Public Finance
- Federal Funds Help for Private Development
How does the HUD 108 Program work?
Who can receive HUD 108 money?
How much HUD 108 money is available?
How is the HUD 108 Program being used?
How can attorneys make the HUD 108 Program work for the private developer?
Be an advocate.
Major challenges for Major Projects.
Different challenges for community funds.
What are the advantages of HUD 108?
Are there any disadvantages of HUD 108?
- A Stroll on Main Street
Main Street Project
A description of the National Trust for Historic Preservation's Main Street Program
Community Reinvestment Act
A description of the Community Reinvestment Act and its use in promoting private
investment
Low-Income Housing Tax Credits
A description of low-income housing tax credits and their use in revitalizing downtown
areas
Rehabilitation Tax Credit
A description of the rehabilitation credit and its use in revitalizing downtown areas
Tax Increment Financing Districts
General description of the tax increment financing district
Business Improvement Districts
General description of the business improvement district
Case Study: Ripon Main Street, Inc.
A description of the Main Street Project established in Ripon, Wisconsin
Case Study: Chamber - Main Street, Inc.
A description of the Sheboygan Falls, Wisconsin Main Street Project
Conclusion
- Juggling Multiple Public and Private Funding Sources for Real Estate
Development (or: How to avoid a three ring circus)
Introduction
Identifying Differing Motivations
Security
- Lien Priority
- Subordination and Intercreditor Agreements
- Buy-Sell Agreements
Additional Intercreditor Issue during Construction: Timing of Contributions
Issues of Cash Flow and Loan-To-Value; Equity; Lock-Boxes
- Private, First Mortgage Lender's View of Cash Flow and Equity
- Public Lender's Concerns Regarding Cash Flow and Equity; the Private Match Wrinkle;
Lock-Boxes
Conclusion
- Keating Housing's Lease to Own Project in Oakland, California
Why did the City of Oakland subsidize a totally middle income residential project?
Selection of a Project Developer
The Keating Lease to Own Program
The Financing Structure
The Predevelopment Phase
The Players
The Structure of the Certificates of Participation
The Lease and Option to Purchase Agreement
- Dealing with Dirty Premises
A Primer on Risk-Based Corrective Action for Real Estate Attorneys
Introduction
What is risk-based corrective action?
Overview of risk-based corrective action
RBCA Tier I: Generic Cleanup objectives
Use Restrictions as an alternative to cleanup
RBCA Tier II: Setting site-specific cleanup objectives
RBCA Tier III: Flexibility to meet cleanup objectives
Institutional and Engineering Controls
Conclusion
Endnotes
- Environmental Risk Management and Commercial Lease Transactions
Introduction
Sources of Environmental Liability
- Comprehensive Environmental Response, Compensation and Liability Act of 1980
- Potentially Responsible Parties
- Hazardous Substances
- Release
- Cleanup Requirements
- Statutory Defenses
Innocent Landowner Defense
The Resource Conservation Recovery Act of 1976
- RCRA Facility Requirements
Underground Storage Tanks
- Who is the Owner of a UST?
Clean Water Act
The Clean Air Act
The Emergency Planning and Community Right to Know Act of 1986 (SARA/Title III)
Commercial Lease Environmental Issues
- Baseline Environmental Assessments
- Permits
- Proposed Uses of the Property
- Development Issues
- Other Commercial Lease Issues
Environmental Site Assessment/Environmental Due Diligence
- ASTM Standard Practices
- Transaction Screen - ASTM 1528
- Phase I Environmental Site Assessment
- Recognized Environmental Conditions
- Components of a Phase I Environmental Site Assessment
- Site Reconnaissance
- Interviews
- Report - Contents
- Use of Prior Assessments
Environmental Contractor Selection and Management
- Selecting the Contractor
Common Environmental Assessment Problems
- Failure to Recognize Significant Environmental Issue
- Overstatement of Problems
- Plain English Language
- Hazardous What?
Allocation of Responsibility
Senior Housing Issues Forum
- Seniors Housing Operational and Liability Issues
- Senior Housing Alternatives: Obstacles to Developing a Continuum of Housing
- Federal Tax Principles Relating to Tax-Exempt Financing of Assisted Living
Facilities
- Workouts for Distressed CCRCs
- Senior Housing: Health Care Issues
Real Estate Financing Potpourri
- Impact of Bankruptcy on Workouts and New Investments
- Project Finance
- Letters of Credit - An Overview
- Addendum
The World's Third Annual Mortgage Financing Program
Introduction
Casualty Losses Mount
Types of Mortgage Insurance Clauses
Mortgagee Protection
Proper Application of Insurance Proceeds
Insurance Proceeds Pre and Post Foreclosure
Financing and Cross-Easement Agreements in Shopping Center and Golf Course
Developments
Introduction
Shopping Centers
- Easements
Site Plan
Types of Easements
- Access
- Parking
- Utility Easements
- Building Encroachments
Duration
Title Insurance
- Operating Covenants
Scope
Use Provisions
Construction Covenants
Separate Agreements
- Costs
Development
Common Area Maintenance Costs
- Take-Over
- Lender Liability
- Casualty and Condemnation
- Notice and Approval Rights
Defaults
Amendments
Estoppel Certificates
- Sample Provisions
Golf Courses and Amenity Financing
- CC&Rs
Definition of the Parcel
Easements
- Golf Cart Paths
- Ball Retrieval
- Burdens
Development Restrictions
Exculpation
Use
Membership
Other Provisions
- Conclusion
The Leasehold Mortgage: Now you see it; now you don't
Introduction
- Mortgageability
Recordation of Lease or Memorandum of Lease
Parties
Legal Description
Term
Rent
Taxes
Uses
Alterations, Additions and Improvements
Ownership of Improvements
Assignability
Right to Sublease
Right to Mortgage
Insurance
Condemnation
Option to Purchase
Option to Extend
Right to Cure Defaults
New Lease
Fee Mortgages
Estoppel Certificates
Environmental Liability
Anti-Merger
Amendments
Lender-Required Modifications
Loan Documentation
Rent Escrow
Lease Compliance
Notices
Costs to Cure
Rent Insurance
Spreader to Fee
Grace Periods
Update on the National Bankruptcy Review Commission as it Relates to
Multi-Family Lending
Don't Merge Without Your Lender's Consent - Transfer Restrictions in Commercial
Real Estate Loan Documents
Affordable Housing Round Table - Part I
For-Profit and Not-for-Profit Affordable Housing Development: Legal Strategies
and Opportunities
The "Not In My Backyard Phenomenon" - Tips on Conflict Management and
Resolutions
Using the Community Reinvestment Act to Find Investors for Your Project
Managing the Bottom Line: Strategic Use of ADR in Real Estate
Transactions
- Avoiding Delay in Arbitration
- Mediation
- How to Approach your Client about Mediation
- Real Estate Arbitration and Mediation
- Special Requirements for Real Estate Arbitrations Clauses in
California
- Controlling the Process: The Scope of the Arbitration
Agreements to Arbitrate: Who is bound and who can enforce?
- Shaping the Arbitration process by controlling the power of the arbitrator
- May Arbitrators award sanctions?
- Mix and Match: Creating tailored dispute resolution clauses
- Choosing the Neutral: Opportunity and Risk
- Arbitration: The Art of Managing the Large, Complex Case
- Conscious Choices: Imposing fair arbitration clauses
- Getting it Right: Correcting arbitration awards
- Statutory Immunity for Arbitrators will expire at the end of this Year: Are
Arbitrators still immune from suit?
- Effective Dispute Resolution for Residential Real Property Disputes
- Arbitration Rider
Federal Nonjudicial Foreclosure Laws: Are we Moving Towards a
National Foreclosure Law?
- An "Illinois View" of Non-Judicial Foreclosures
- The Application/Designation Process
- A Commissioner's Overview
- Practice as a Foreclosure Commissioner
- Conclusions of a Commissioner
How are the New Laws Affecting Real Estate Lawyers?
Foreclosing on the American Dream: A Preliminary Evaluation of Federal Power of
Sale Legislation
Ninth Annual Fundamentals of Real Estate Taxation
Check-The-Box: A Major Step Toward Tax Simplification
Estate Planning for Real Estate
Selecting and Retaining An Environmental Consultant
Real Estate Leasing Revisited
Alive and Kicking: "Encroachment" and Tying Claims in
Franchising
Exclusive Territories, "Encroachment", "Impact" and The Implied
Covenant of Good Faith and Fair Dealing
- Introduction
- What is the implied covenant of good faith and fair dealing?
- Why is it pled?
- What is it? Some Formulations
- A tort in addition to a contract concept?
- The implied covenant of good faith and fair dealing in
expansion/"encroachment" cases
- Expansion/"Encroachment Claims"
- Cases rejecting applicability of the implied covenant
- Successful/Viable franchisee claims based on the implied covenant of good faith and
fair dealing
We Have A Subsidiary Who Can Get It For You Wholesale - A Survey Of The Antitrust
Consequences of Franchise Sourcing Limitations at the Millennium
- Franchise Tying Claims
- Per Se Tying Claims
- Historical Development of the Concept of Market Power
- Kodak and Virtual Maintenance
- Pre-Contract Disclosure
- Franchise Disclosure Requirements
- NUFOC
- The FTC Rule
- Market Power After Kodak and Virtual
- Post-Kodak Franchise Decisions
- Decisions Declining to Apply Kodak to Franchising
- Cases Holding That Kodak May Apply to Franchises
Significant Decisions on Approved Suppliers
- Introduction
- Quality Control Standards
- Duty of Trademark Owner to Grant Suppliers the Right to use the Mark
- Franchisor Refusal to Approve Suppliers
- Franchisor must financially benefit from sales by Approved Supplier
Other Impediments to Tying Claims
- Standing: The Valley Products Decision
- Class Action Certificate
- Franchise as a Single Bundle of Rights Rather than Tied Products
- Single Bundle of Rights in Distribution System Cases
- Conclusion
If It Says It, You Can Do It (But Only If It Is Reasonable)
Hot Topics in Title Insurance
- Arbitration
- Arbitration of Title Insurance Disputes
- Title Insurance Claims Disputes: Why Arbitrate?
- State Law Impact on Arbitration of Title Insurance Disputes under ALTA Policies
- A Quick Guide to Successfully Presenting Your Title Dispute in Arbitration
- My Mind is Made up! Don't confuse me with the fact!
- Arbitration of Title Insurance Disputes: Dispelling the Myths
- Enforcement of Arbitration Agreements under the Federal Arbitration Act
- Rules for Title Insurance Disputes
- Entering an Arbitration Award as a Judgment
- Endorsements I
- Large and Multi-State Transactions: Endorsements, Regional Differences and
Reinsurance
- Recharacterization Issues - Title Insurance
- Insurance of a Secured Lender's Interest in Rents Pursuant to a Separate Assignment
of Rents
- Deeds in Lieu of Foreclosure - Current Developments
- Construction Loan Mechanics' Lien Coverage, Modifications and Partial Releases
The Commercial Property Lease, Volume II - Allocating Risk,
Controlling Use, Tenant's Rights, and Landlord's Remedies - Patrick A. Randolph, Jr., ABA,
Section of Real Property, Probate and Trust Law
Part I - Allocating Risk
Chapter 1
- The Do's and Don'ts for Letters of Intent for Leases
- Sample Letter of Intent
- Optional Provisions for Letters of Intent
Chapter 2
- Work Letters in Commercial Leases
- Checklist for Issues Addressed by Work Letter
- Checklist of Goals of the Parties for Work Letter
- Construction Issue
- Compliance with Laws Issues
- Lender's Concerns and Tenant's Fears
Chapter 3
- Expansion and Contraction Options
- Checklist for Contraction Options
- Checklist for Expansion Options
- Form 1 - Right to Terminate Expansion/Contraction Options
- Form 2 - Termination Options
- Form 3 - Early Termination Rights
- Form 4 - Right to Terminate
- Form 5 - Expansion
- Form 6 - Right to Lease Additional Space and Option Space
- Form 7 - Termination Option
Chapter 4
- Electricity and Water
- Definitions
Chapter 5
- When Disaster Strikes (Trying to Make Sense of the Destruction Clause When
It Really Happens)
Part II - Agreements Regarding Use
Chapter 6
- Lease Use Restrictions Using "Solely" or "Only" and
"Primarily" or "Principally": Bankruptcy Implications on Lease Use
Restrictions
- Drafting tips for Lease Use Restrictions
- Criteria for Defining a Shopping Center
Chapter 7
- A Tenant's Perspective on Operating Covenants
Chapter 8
- The Store Went Dark -- The Landlord's Side
- Factors for Determining Landlord's Negotiation Position
- Requirements for Enforcing Implied Covenant of Continuous Operation
Chapter 9
- Use Clauses and Restrictive Covenants in Motion Picture Theater Leases
Part III - Rights and Remedies
Chapter 10
- A Fifty State Survey of Commercial Statutory Landlord's Liens
- Table of Statutory Landlord's Lien State Law Provisions
- State by State Summary of Statutory Landlord's Lien Provisions
Chapter 11
- "Going Dark" -- Remedies for Violation of Continuous Operation
Clauses
Chapter 12
- Going Dark Aggressively
Chapter 13
- First Class Condition: Responsibilities, Rights and Remedies Respecting the
Condition of Commercial Leasehold Premises
Chapter 14
- A Tenant's Remedies for a Landlord's Breach of its Obligation to Provide
Security
Chapter 15
- The Tenant as Terminator: Constructive Eviction in Modern Commercial Leases
Four disks on Annotated Forms of Hotel Industry Agreements and "Legal Risk in Employee Use and Rebate Programs"
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