AMERICAN BAR ASSOCIATION
REAL PROPERTY, PROBATE AND TRUST LAW SECTION
Real Property Division Subcouncil Meeting
Saturday, April 28, 2007, Fairmont Hotel, Washington, D.C.
A meeting of the Real Property Subcouncil of the Section of Real Property, Probate and
Trust Law of the American Bar Association was held at 11:00 a.m. E.D.T. on Saturday, April 28,
2007 at the Fairmont Hotel, Washington, D.C.
In attendance: Kathleen M. Martin, Chair-Elect; Roger D. Winston, Real Property
Division Vice-Chair; Leopold Z. Sher – Section Delegate to House of Delegates; David K. Y.
Tang – Section Delegate to House of Delegates; Nancy Appleby; Ed Brading; Jim Burkhard;
Elwood Cahill; Phyllis Rubenstein; Michael J. Glazerman; Michael Goler; Elizabeth Lee;
Martin P. Miner; Andrew F. Palmieri; Robert C. Paul; Roseleen Rick; Phyllis Rubinstein; Sidney
G. Saltz; Susan G. Talley; David Thomas; Ira J. Waldman; Morty Fisher (past Chair); Beverly
Quail (past Chair); Kevin L. Shepherd (past Chair); Jasleen K. Anand (Fellow); David Campbell;
Janice Carpi; Jim Durham; Darius Dynkowski; Steven J. Eagle; Robert Freedman; Dennis Horn;
Alan Keiser; Orlando Lucero; Tanya Marsh (Fellow); Carol Ann Martinelli; Jo-Ann Marzullo;
Patrick E. Mears; Barry B. Nekritz; Julie Panaro (Fellow); Patrick Randolph; Faith Rivers; Roger
Schwenke; Shannon J. Skinner; Stirling Scott Willis; and Julius (Jay) Zschau.
Roger D. Winston, Real Property Division Vice-Chair, acted as Chair of the meeting.
Susan G. Talley acted as Secretary of the meeting.
Call to Order: Mr. Winston called the meeting to order.
Approval of Minutes: The Minutes of the Real Property Subcouncil Meeting held on
Friday, November 3, 2006 at the Westin Kierland, Scottsdale, Arizona, were presented to the
Subcouncil for approval. On the motion of Ms. Martin, which was seconded by Mr. Goler, the
Minutes were unanimously adopted by the Subcouncil.
Action Items: Mr. Winston reported that the current By-Laws of the Section include
term limits for Committee Chairs and Vice Chairs. In making appointments for the upcoming
year, he and Ms. Martin were encountering some difficulties in replacing individuals who would
otherwise be term limited. He requested approval of the Subcouncil to propose to the Council
that the By-Laws be amended so as to allow the suspension of the term limits on a case by case
basis as deemed necessary by the Section Chair or a Division Vice Chair in making
appointments. A motion was made by Ms. Martin to approve the proposal, which was seconded
by Mr. Goler. The motion was unanimously approved by the Subcouncil. Ms. Rick asked if Mr.
Winston knew the percentage of Chairs and Vice Chairs who were facing term limits. Mr.
Winston reported that he did not, but that the number was limited and that he hoped this would
not be an issue in the next year.
Activity and Project Reports:
1. CLE Activities.
(a) 2007 Spring Symposium. Mr. Winston noted that the Spring Symposium
was a success, with approximately 525 registrants. The Symposium included the first Young
Lawyers Institute, which had roughly 30-65 attendees in each session. There was also very good
attendance at the reception held for the YLI registrants. Andrew Palmieri and Robert Freedman
reported that the CLE Committee learned some things for the next Symposium. There were
some issues in printing materials and room assignments. The committee will also work next year
to avoid scheduling conflicts. There is a need to have the group time slots more formalized, with
time for group business to be conducted.
(b) Young Lawyer Institute. Jo-Ann Marzullo gave a further report on the
Young Lawyers Institute. She said that the YLI brought in unexpected participants, and the
Section received good feedback on the programming. Mr. Winston thanked the Subcouncil
members for sending associates from their respective firms. Sid Saltz asked what type of
programming would be planned for next year. Would the programming be duplicative of 2007?
Ms. Marzullo reported that there would be different programming and that the 2007 program
materials would be delivered in the form of eCLE. Ms. Lee reported that the CLE committee
was looking at how to build on this year's programming for the next year. Mr. Palmieri reported
that the Section would be sending a Zoomerang survey to the attendees. Ms. Martin reported
that the Section was looking at how to tie the YLI attendance to membership recruitment.
Martin Miner questioned whether there was conflict between having the YLI and the community
outreach programming. He said that these concerns had been raised by the community outreach
task force. Mr. Winston reported that the two programs had evolved separately. Going forward,
it might make sense to do some programming together. Ms. Lee sensed that the two programs
had different audiences. Most of the YLI attendees had several years of practice experience.
(c) 2007 Joint Fall CLE Meeting. Elizabeth Lee reported on planning for the
2007 joint CLE meeting with the Tax Section in Vancouver. Sandra Porter will be taking the
lead on the RP side, and will be coordinating with Vickie Wendell on the PT side. Proposals are
out for topics. Discussions are underway with the Tax Section about joint programming. The
Tax Section is planning to shorten its programming. Michael Goler reminded everyone about
the new passport requirements for traveling to and from Canada. In addition, Mr. Palmieri
reminded the group that governmental officials must have a special visa. The CLE committee
will be reminding group chairs and program chairs about these requirements.
(d) eCLE Programs. Scott Willis reported on the eCLE programming. Ten
eCLE programs were held during this bar year with approximately 200 participants per program
and generating revenues of approximately $7,000 per program for the Section. As previously
mentioned, the eCLE committee will be repackaging the YLI programming for eCLE. Mr.
Willis reminded everyone that the CLE committee is always on the lookout for hot topics for
eCLE programming. Last year, the best attended program was on the new ALTA forms.
(e) On-line Skills. Mr. Palmieri reported on the online skills programs.
Parts I and II of the title insurance program have already been released. Part III will be released
in the ensuing week. Approximately 60 units of Part I were sold and approximately 20 units of
Part II were sold. To date, the Section is at about 70% of the sales needed to break even. The
CLE committee is looking at marketing the programs outside of the ABA – e.g., to real estate
trade associations. The committee is also looking at possibilities for bulk sales. The programs
have a long shelf life.
2. ECHNSA. Due to a scheduling conflict, Roger Schwenke reported early on a
new NCCUSL drafting committee for the Environmental Controls and Hazards Notice Systems
Act. The drafting committee is just getting started. Mr. Schwenke will serve as the Section and
ABA representative to the drafting committee. The purpose of the committee is to draft an act
that will work with existing "one call" systems that allow landowners, contractors and other
workers to call before breaking ground to determine if there are underground utilities. This type
of "one call" system would include environmental use controls and hazards in the notice system.
(a) Real Property, Probate and Trust Journal. Jim Burkhard reported on the
Journal. The proposed Section name change will affect the name of the Journal. Similarly, the
new logo and color scheme for the Section will affect the Journal. The Section is looking at how
the colors will be used so as to be consistent with the Journal's status as an academic publication.
(b) Probate and Property Magazine. Ed Brading and Michael Glazerman
reported on the magazine. They stressed the need for content and on getting Supervisory
Council Members and Group Chairs to follow up with program participants after the CLE
programs to submit their materials for publication.
(c) Books and Media. Phyllis Rubenstein reported that the revenue from
publications was off approximately 7.5-8%. This decline in revenues is more of a timing issue.
A number of books that will sell well are just coming on line, and one book on pensions had to
be pulled from publication because of a change in the applicable law. An offer of free shipping
for purchases over a certain amount spurred sales in July and August of 2006, which skewed the
2006 numbers. She expressed some concern over lining up RP authors for books, because
practitioners are currently very busy.
(d) RPPT eReport. Susan Talley reported on the new e-publication. As with
other Section publications, content is always needed. Some new, young Real Property editors
have been brought on board to assist.
4. Review of Fall Leadership Meeting. Discussion of the fall leadership meeting
was deferred to the full Council meeting.
5. Bankruptcy Amendments. Patrick Mears provided a refresher on the Qualitech
decision by the 7th Circuit Court of Appeals. There, the court held that, under Section 363(f) of
the Bankruptcy Code, real estate subject to a leasehold could be sold free and clear of the lease.
This decision is inconsistent with the protections given to lessees elsewhere in the Code. In the
Fall, the Council approved a report to be submitted to the ABA House of Delegates on a
proposed fix to the Bankruptcy Code. Efforts have been made to lobby both the House and
Senate judiciary committees, with a view to including the corrective legislation in the technical
amendments to the 2005 Bankruptcy Act. The report, which had been vetted by an RPPT
working group, was submitted to the House of Delegates with copies to other affected ABA
sections. The Business Law Section raised concerns that the report had not been fully vetted
within its Section. In light of that reaction, the RPPT Section Delegates withdrew the report at
the mid-year meeting. The report has been further revised and disseminated to a wider group,
with a request for comments by April 30. On May 9, the report will be submitted to the House of
Delegates. The BLS wants to include clarification on the sale of a licensor's interest in
intellectual property subject to a licensee's rights. Those sales under the Bankruptcy Code raise
some of the same issues as in Qualitech. Concern has been expressed that this additional
clarification might hold up the fix as to real property leases. David Tang reported that the
Section has a good working relationship with the BLS. The Section on Science & Technology
Law may also have an interest in the corrective legislation. On motion of Michael Goler,
seconded by Kathy Martin, the Council delegated discretion to the RPPT working group and the
Section Delegates to file the report as is or to make appropriate changes after input from the BLS
and other affected sections.
6. LORS. Scott Willis reported on the legal opinion risk seminars project (LORS),
started by the Business Law Section. The seminars represent an effort to have a national
discussion on the risk of giving opinion letters. These seminars are different from the Accord
project. The BLS is trying to bring in as many parties as it can, including the ABA, the Tri-Bar,
rating agencies and lenders. Ken Jacobson is serving as the RPPT representative. The plan is to
have two seminars per year, with a view to arriving at uniform standards on the meaning of
7. Uniform Acts. Shannon Skinner noted that the Joint Editorial Board for Uniform
Real Property Acts met in the previous week. The highlight of the meeting was the report
submitted by the Property Preservation Task Force, with the request that NCCUSL appoint a
drafting committee, which has now been done. The JEB is also considering topics such as real
estate auctions, sales of property tax liens and continuing care facilities. Those are in the
preliminary study phase. The JEB is still working on a Uniform Limited Cooperative
Association Act (ULCAA). There is a concern that cooperatives are being formed to own or
operate residential housing under state laws that govern other kinds of cooperatives, such as
agricultural cooperatives. In doing so, developers may be avoiding other state law requirements
for housing cooperatives, which generally have consumer protection provisions unique to
8. Task Force on Real Property Law Curricula. Ed Brading and David Tang
reported on the task force's work. The results of the Phase I study will be published in the
September/October issue of Probate & Property. The report in the magazine will be a shorter
version. A longer version will be published in a law review. It is possible that the task force will
be coming back to the Subcouncil and the Council for a resolution in support of some of its
recommendations. That is for a later date. Phase II of the project is to look at the "demand side"
– what the law firms are looking for in associates for real property practices. The group first
targeted the "Am Law" list of large firms. Now the group is looking at smaller and mid-size
firms, as well as firms of the Section's leadership. The group will be surveying attendees at the
9. UTDRPA. Roger Winston reported on the Uniform Transfer at Death Real
Property Act. Dennis Horn has a second draft of the Act, which is supposed to be finalized over
the summer. It is intended to facilitate real property transfers on death. Dennis is reviewing with
a view toward avoiding title problems.
10. FREP. Roger Winston reported on the March 2000 meeting of the Forum of Real
Estate Professionals, currently comprised of representatives from ACREL, ACMA, ICSC and the
Section. He believes it continues to be a worthwhile effort. Both ACREL and ACMA viewed
the Section as a feeder for their new members.
11. Succession Planning. Mr. Winston reminded Supervisory Council Members of
their term limits and the need to groom a successor.
12. Spring Meeting Marketing Efforts. The group thanked Mr. Winston for his
efforts to promote the Spring Symposia and the YLI. There were ads in local legal and business
publications in the DC area, as well as direct marketing efforts to law firms and real estate
There being no further old business or new business, the meeting was adjourned at 12:35