Real Estate Law

The Construction Industry: Shortcuts To Disaster

Presented by the ISBA Real Estate Law Section
Co-sponsored by the ISBA Construction Law Section and the ISBA Commercial Banking, Collections & Bankruptcy Section


6.0 hour MCLE credit

Original Program Date: Friday, May 13, 2016
MCLE Accreditation Extension Period: May 18, 2023 - May 17, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Explore the many issues involving the construction industry, including some situations that are predictable and some that you can hardly imagine ever occurring!

Join us for a comprehensive look at how to handle complicated lien priority and construction escrow matters involving new construction with this informative full-day seminar that uses a fact pattern scenario (based on an actual case) as the backdrop for each presentation! Real estate attorneys, construction law practitioners, and lawyers working in the commercial banking/collections/bankruptcy areas who attend this seminar will better understand:
  • The issues and concerns that can arise with the original development contracts and general real estate purchase contracts;
  • The requirements involved in financing a construction project;
  • The red flags to look for in construction, escrow procedures and disbursements, and related title insurance matters;
  • How mechanics’ liens affect the developer, builder, lender, real estate purchaser, and subcontractor;
  • How mechanics’ lien foreclosure and builder’s bankruptcy impacts a construction project; and
  • Changes in the law that substantially affect construction-related issues.


Program Coordinators:
Robert J. Duffin, Attorney at Law, Joliet
Myles L. Jacobs, Castle Law, Joliet
Ted M. Niemann, Schmiedeskamp Robertson Neu & Mitchell LLP, Quincy

Program Moderator:
Myles L. Jacobs, Castle Law, Joliet


Background
The fact pattern, which is addressed by all presenters, is discussed by our panel, including the issues involved in the original contracts and general real estate purchase contracts.
Robert J. Duffin, Attorney at Law, Joliet
Scott M. Hoster, Castle Law, Joliet
Myles L. Jacobs, Castle Law, Joliet
Ted M. Niemann, Schmiedeskamp Robertson Neu & Mitchell LLP, Quincy

Construction Financing
Discover the issues and requirements involved in financing the construction project at the outset, as well as how changes in circumstances as the project proceeded created additional legal issues. A discussion regarding the matters that should have been considered by the lender is also included.
Michael G. Cortina, Smith Amundsen LLC, Woodstock
George M. Olson, The Private Bank, Oak Brook

Construction and Title Insurance
This segment addresses important construction escrow procedures (including lien waivers, sworn statements and escrow agreements), title insurance policies and coverages (including mechanics’ lien coverage), red flags in construction escrow disbursements, and the obligations of an escrowee acting without instructions, including potential pitfalls contained in the fact pattern.
Martin Cann, First American Title Insurance Company, Warrenville
Kerry R. Dahm, First American Title Insurance Company, Warrenville
Ted M. Niemann, Schmiedeskamp Robertson Neu & Mitchell LLP, Quincy

12:45 – 1:15 p.m. Mechanics Liens
This panel presentation discusses mechanics’ liens from the perspectives of a developer, builder, lender, purchaser, and subcontractor regarding the fact pattern subdivision construction project that is subject to substantial problems.
Robert J. Duffin, Attorney at Law, Joliet
Scott M. Hoster, Castle Law, Joliet
Myles L. Jacobs, Castle Law, Joliet
Samuel H. Levine, Miller Canfield Paddock and Stone PLC, Chicago

Foreclosures and Bankruptcy
Join us for an in-depth look at how mechanics’ lien foreclosure impacts the fact pattern construction project. Topics include: competing mortgages in foreclosure and mechanics’ liens priority issues; and the effect of the builder’s bankruptcy on the construction project and the interests of the developer, lender, real estate purchasers, and mechanics’ lien claimants.
Myles L. Jacobs, Castle Law, Joliet
Samuel H. Levine, Miller Canfield Paddock and Stone PLC, Chicago
Erica C. Minchella, Minchella & Associates Ltd, Skokie
Margery Newman, Deutsch Levy & Engel Chtd., Chicago

Summary and Observations
This segment examines the fact pattern court’s findings and holdings, as well as related lien priorities, equity-based outcomes, and more.
Robert J. Duffin, Attorney at Law, Joliet
Scott M. Hoster, Castle Law, Joliet
Myles L. Jacobs, Castle Law, Joliet
Ted M. Niemann, Schmiedeskamp Robertson Neu & Mitchell LLP, Quincy

How Time Would Change the Outcome
Don’t miss this presentation that examines how recent case law and legislation would affect the outcome had the fact pattern occurred today.
Scott M. Hoster, Castle Law, Joliet
Samuel H. Levine, Miller Canfield Paddock and Stone PLC, Chicago
Margery Newman, Deutsch Levy & Engel Chtd., Chicago

Conclusion and Questions
This interactive panel discussion summarizes construction project-related issues, applicable laws, and best practices.
Robert J. Duffin, Attorney at Law, Joliet
Myles L. Jacobs, Castle Law, Joliet
Ted M. Niemann, Schmiedeskamp Robertson Neu & Mitchell LLP, Quincy

Pricing Information
  • Please Note: You must attend the entire program in order to earn MCLE credit for this seminar.
  • ISBA sponsoring section members get a $10 registration discount (which is automatically calculated in your cart when you log in to register).
  • Fees:
    • ISBA Member Price of $180 is displayed below when you login and program is eligible for Free CLE member benefit
    • Non-Member Price $300
    • New Attorney Member (within the first five years of practice) - $25
    • Law Students - Free

From Opening to Close - A Construction Trial & the Technology to Win Your Case

Presented by the ISBA Construction Law Section
Co-Sponsored by the ISBA Real Estate Law Section


6.25 hours MCLE credit, including 6.25 hours Professional Responsibility MCLE credit

Original Program Date: Friday, October 23, 2015
MCLE Accreditation Extension Period: May 23, 2023 - May 22, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Join us for a mock trial program that offers you a greater understanding of the complexities surrounding a construction trial involving a design-build project where the plaintiff is claiming breach of contract, negligent and defective design, while the defense claims that the fault lies with the work performed by the plaintiff’s other contractors. Construction law attorneys and real estate practitioners with all levels of practice experience who attend this full-day seminar will learn how to construct a strong opening statement, examine witnesses, and present a strong closing argument.


Program Coordinator:
Michael J. Hanahan, Schiff Hardin LLP, Chicago

Presiding Judges:
Hon. Clifford L. Meacham (Ret.), ADR Systems, Chicago
Hon. Robert J. Quinn (Ret.), ADR Systems, Chicago


Tips and Techniques for Conducting Opening Statements*
Discover effective tips and techniques for conducting opening statements with this presentation as counsel for both sides of the case present their opening statements. Once opening statements have concluded, the moderator will lead the audience through an interactive discussion regarding the effective aspects of each presentation and the developing theme of the case. Additional topics include: setting the stage for the upcoming witnesses, general ideas about the case, and possible strategies each counsel could use moving forward.
Moderator: David T. Arena, Di Monte & Lizak LLC, Park Ridge
Plaintiff’s Opening Statement: Kevin L. Kolton, Schiff Hardin LLP, Chicago
Defendant’s Opening Statement: Newton C. Marshall, Karbal Cohen Economou Silk Dunne, Chicago

Examination of the Witnesses – Plaintiff’s Case-in-Chief*
Watch as the plaintiff’s counsel presents its three key witnesses: the Plaintiff’s Chief Manager, its structural engineer expert, and a leasing agent. Each witness will testify about the contract terms, the lead up to the construction project, the work that took place during the project, and damage issues, which is then followed by defense counsel’s cross-examination. Both sides will be allowed objections and will adjust their examinations according to the Judge’s rulings. Learn why specific testimony was elicited, as well as how the counsels’ techniques and strategic decisions were useful in accomplishing their goals. A discussion on the effectiveness of certain types of technology when presenting witnesses is also included.
Moderator: Stanley N. Wasser, Feldman Wasser, Springfield
Plaintiff’s Direct Examination: Jennifer A. Nielsen, Lyman & Nielsen, Oak Brook
Defendant’s Cross Examination: Justin L. Weisberg, Arnstein & Lehr LLP, Chicago

Examination of the Witnesses – Defendant’s Case-in-Chief*
Listen as defense counsel’s three key witnesses – the Defendant’s President and CEO, its site and concrete expert, and the project superintendent – testify about the contract terms, the work that took place during the project, changes during the project, and damage issues. Plaintiff’s counsel will be given the opportunity to cross-examine each witness, and both sides will be allowed to object and adjust their examinations according to the Judge’s rulings. Learn why specific testimony was obtained, how certain techniques and strategic decisions were useful in accomplishing a goal, and the effectiveness of certain types of technology when presenting witnesses.
Moderator: Thomas A. Christensen, Huck Bouma P.C., Wheaton
Defendant’s Direct Examination: Margery Newman, Deutsch Levy & Engel Chtd., Chicago
Plaintiff’s Cross Examination: Nancy DePodesta, Arnstein & Lehr LLP, Chicago

Tips and Techniques for Effective Closing Arguments*
Don’t miss this segment as both counsels present their closing arguments! Once closing arguments have concluded, the moderator will lead the audience through an interactive discussion regarding the compelling aspects of the presentation, probable rulings, and the effectiveness of each closing argument. The judges will then present the ruling and attendees will be given the opportunity to ask questions.
Moderator: James M. Dash, Carlson Dash LLC, Chicago
Plaintiff’s Closing Argument: Michael J. Hanahan, Schiff Hardin LLP, Chicago
Defendant’s Closing Argument: Portia Kayser, Fisher, Patterson, Sayler & Smith, St. Louis


Pricing Information
  • Please Note: You must attend the entire program in order to earn MCLE credit for this seminar.
  • ISBA sponsoring section members get a $10 registration discount (which is automatically calculated in your cart when you log in to register).
  • Fees:
    • ISBA Member Price of $187.50 is displayed below when you login and program is eligible for Free CLE member benefit
    • Non-Member Price $312.50
    • New Attorney Member (within the first five years of practice) - $25
    • Law Students - Free

Reverse Mortgage Funding, LLC v. Catchins

Reverse Mortgage Funding, LLC v. Catchins
Illinois Appellate Court
Civil Court
Affirmative Defenses
Citation
Case Number: 
2023 IL App (1st) 221197
Decision Date: 
Friday, May 5, 2023
District: 
1st Dist.
Division/County: 
5th Dist./Cook Co.
Holding: 
Reversed in part and vacated in part; cause remanded.
Justice: 
DELORT

Appeal of a mortgage foreclosure action involving a deceased mortgagor. The administrator of the estate and one of the heirs filed an affirmative defense alleging that the mortgagor was mentally incompetent to execute the mortgage documents and the circuit court struck the affirmative defense. Defendants appealed from that order as well as the order of foreclosure and sale and the order approving the judicial sale of the property. The appellate court reversed the order striking the affirmative defense, vacated the orders of foreclosure and sale and approving the judicial sale of the property by finding that the trial court erred in striking the properly pleaded affirmative defense and that this denied the defendants a fair opportunity to properly frame their defense of incapacity. (MITCHELL and LYLE, concurring)

Drafting Subleases & Assignments in Commercial Real Estate, Part 2 - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: March 30, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Subleasing and assignments are essential instruments for tenants to reduce the size and cost of their space as their needs change. Landlords (and their lenders) often disfavor subleases and assignments because they might lose control of who occupies the space. Subleases come in a variety of forms, all of which need to conform to the provisions of the master lease. Because of this, subleases can quickly become wildly complex, and have the potential to give rise to multiple levels of friction and possibly litigation. This program will provide you with a practical guide to the types of subleases and assignments, key issues for landlords, tenants, and subtenants, and drafting tips.


Day 2 – March 30, 2022:

  • Space recapture, profit sharing, and other landlord remedies
  • Restrictions on use in subleases and subtenant risks
  • Non-disturbance agreements with landlord and lender
  • Subtenant remedies when tenant defaults on master lease
  • Most important provisions of lease assignments


Speakers:

Michael P. Williams is a partner in the Denver, Colorado office of Senn Visciano Canges, P.C., where he has extensive experience in commercial leasing and tenant relations, acquisition and disposition of office, industrial, retail and multi-family properties, representing real estate professionals in disputes before their boards or in litigation, and advising homeowner associations. He also assists lenders in pre-foreclosure workouts, foreclosures, loan modifications and servicing REO property needs. He is a member of the banking law subcommittee of the ABA’s Business Law Section. Mr. Williams received his B.A. from Colorado State University and his J.D. from the University of Denver College of Law.

Indemnification & Hold Harmless Agreements in Real Estate Transactions - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: March 8, 2022
Accreditation Expiration Date: May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Indemnification and hold harmless agreements are part of virtually every real estate transition. These agreements protect parties against financial loss or other liability arising from the occurrence of certain events. Indemnification is often backed by insurance policies. The interaction between indemnification provisions – scope, triggering events, assertion of claims and payment – and funding sources is typically very complex. This program will provide you with a real-world guide to indemnification and insurance in real estate development, ownership, and leasing.

  • Forms of indemnification in real estate
  • Scope of indemnity, triggering events or discoveries, ensuring payment of claims
  • Utilizing insurance policies to guarantee and fund indemnification claims
  • Types and roles of various forms of insurance – casualty, business/rent interruption, CGL
  • Important differences among named insureds and additional insureds
  • Drafting interaction of co-insurance, valuation, and agreed value endorsements

Speakers:

Anthony Licata is a partner in the Chicago office of Taft Stettinius & Hollister LLP, where he formerly chaired the firm’s real estate practice. He has an extensive practice focusing on major commercial real estate transactions, including finance, development, leasing, and land use. He formerly served as an adjunct professor at the Kellogg Graduate School of Management at Northwestern University and at the Illinois Institute of Technology. Mr. Licata received his B.S., summa cum laude, from MacMurray College and his J.D., cum laude, from Harvard Law School.

Drafting Ground Leases, Part 2 - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: April 27, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Ground leases are sophisticated contracts combining the elements of buy/sell agreements, commercial leases, and a sophisticated financing. A landowner enters a long-term lease with a developer who constructs a building or other improvements on the land. The developer generally finances the building, occupying it or leasing it out to other tenants, paying the landowner rent on the underlying ground over a long period of time. There are many benefits of ground leases for the landowner and the tenant. But they are very complex agreements involving sophisticated economic calculations and require very careful review. This program will provide you with a practical guide to how ground leases work, and negotiating and drafting them.

Day 2 – April 27, 2022:

  • Major financing issues, including subordination
  • Construction and development issues
  • Special condemnation and casualty considerations


Speaker:

Anthony Licata is a partner in the Chicago office of Taft Stettinius & Hollister LLP, where he formerly chaired the firm’s real estate practice. He has an extensive practice focusing on major commercial real estate transactions, including finance, development, leasing, and land use. He formerly served as an adjunct professor at the Kellogg Graduate School of Management at Northwestern University and at the Illinois Institute of Technology. Mr. Licata received his B.S., summa cum laude, from MacMurray College and his J.D., cum laude, from Harvard Law School.

John S. Hollyfield is of counsel and a former partner in the Houston office Norton Rose Fulbright, LLP. He has more than 40 years’ experience in real estate law practice. He formerly served as chair of the ABA Real Property, Probate and Trust Law Section, president of the American College of Real Estate Lawyers, and chair of the Anglo-American Real Property Institute. He has been named a "Texas Super Lawyer" in Real Estate Law by Texas Monthly magazine and is listed in Who’s Who in American Law. He is co-editor of Modern Banking and Lending Forms (4th Edition), published by Warren, Gorham & Lamont. He received his B.B.A. from the University of Texas and his LL.B. from the University of Texas School of Law.

Drafting Ground Leases, Part 1 - A National Perspective

Presented by the ISBA


0.75 hour MCLE credit


Original Program Date: April 26, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Ground leases are sophisticated contracts combining the elements of buy/sell agreements, commercial leases, and a sophisticated financing. A landowner enters a long-term lease with a developer who constructs a building or other improvements on the land. The developer generally finances the building, occupying it or leasing it out to other tenants, paying the landowner rent on the underlying ground over a long period of time. There are many benefits of ground leases for the landowner and the tenant. But they are very complex agreements involving sophisticated economic calculations and require very careful review. This program will provide you with a practical guide to how ground leases work, and negotiating and drafting them.

Day 1 – April 26, 2022:

  • Overview of important provisions of ground leases
  • Underlying economics of ground leases
  • Permitted use and change of use
  • Methodologies for setting and adjusting rent to reflect risk and value over time


Speaker:

Anthony Licata is a partner in the Chicago office of Taft Stettinius & Hollister LLP, where he formerly chaired the firm’s real estate practice. He has an extensive practice focusing on major commercial real estate transactions, including finance, development, leasing, and land use. He formerly served as an adjunct professor at the Kellogg Graduate School of Management at Northwestern University and at the Illinois Institute of Technology. Mr. Licata received his B.S., summa cum laude, from MacMurray College and his J.D., cum laude, from Harvard Law School.

John S. Hollyfield is of counsel and a former partner in the Houston office Norton Rose Fulbright, LLP. He has more than 40 years’ experience in real estate law practice. He formerly served as chair of the ABA Real Property, Probate and Trust Law Section, president of the American College of Real Estate Lawyers, and chair of the Anglo-American Real Property Institute. He has been named a "Texas Super Lawyer" in Real Estate Law by Texas Monthly magazine and is listed in Who’s Who in American Law. He is co-editor of Modern Banking and Lending Forms (4th Edition), published by Warren, Gorham & Lamont. He received his B.B.A. from the University of Texas and his LL.B. from the University of Texas School of Law.


Escrow Agreements in Real Estate Transactions - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: April 19, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Escrow agreements are essential documents in every significant real estate transaction. They are mechanisms for allocating risk among the parties to the transaction. Escrow agents are charged with determining whether certain contractual conditions are satisfied, thereby triggering the disbursement of money or property. Escrow arrangements mitigate the risk of non-performance by one of the parties. But escrow agreements are fraught with potential conflicts and traps that may give rise to delays in finally closing a transaction. This program will provide you with a practical guide to drafting effective escrow agreements, risk allocation, conflict avoidance and working with escrow agents.

  • Essential terms – property held, conditions for release/disbursement, fees
  • Defining an agent’s duties, authority, and liability
  • Practical problems with escrow arrangements – holding all the documents, breaking escrow, death of party
  • Issues in construction contracts, development transactions, and property sales
  • Letter of credit, tax and bankruptcy issues to consider


Speakers:

John S. Hollyfield is of counsel and a former partner in the Houston office Norton Rose Fulbright, LLP. He has more than 40 years’ experience in real estate law practice. He formerly served as chair of the ABA Real Property, Probate and Trust Law Section, president of the American College of Real Estate Lawyers, and chair of the Anglo-American Real Property Institute. He has been named a "Texas Super Lawyer" in Real Estate Law by Texas Monthly magazine and is listed in Who’s Who in American Law. He is co-editor of Modern Banking and Lending Forms (4th Edition), published by Warren, Gorham & Lamont. He received his B.B.A. from the University of Texas and his LL.B. from the University of Texas School of Law.

Drafting Small Commercial Real Estate Leases - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: May 24, 2022
Accreditation Expiration Date: May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


In small space leases, tenants are much more sensitive to the cost or reviewing and negotiating lengthy leases. Also, use restrictions in lengthier leases can unduly restrict a tenant’s ability to use the space to operate their business. Landlord rights and remedies in “short “form” leases tend to leave tenants with little flexibility and few remedies for landlord breaches. At the same time, landlords fear the instability and costs associated with small tenants. This program will provide you a real-world guide to reviewing a small commercial lease, including economics, use restrictions, subleasing, and remedies.

  • Red flags in “short form” leases for small tenants
  • Ensuring “use” restrictions allow tenant to operate its business
  • Common area maintenance, taxes, insurance, fees and penalties
  • Scope of landlord services to tenant – and landlord remedies
  • Exit issues – “go dark” provisions, subletting, tail liability


Speaker:

David C. Camp is a partner in the Denver office of Senn Visciano Canges, PC, where he represents clients in all aspects of real estate transactions. He has extensive experience in leasing, development, construction, financing and ownership issues. He also has substantial experience in commercial finance matters, most frequently corporate and real estate financing, including mezzanine loans, construction loans, and traditional loan matters. Mr. Camp received his B.A. cum laude from Middlebury College and his J.D. from the University of Pennsylvania Law School.

Guarantees in Real Estate Transactions - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: December 20, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 9, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Guarantees undergird most real estate transactions. Lenders, investors and others are often unwilling or unable to finance or otherwise support a real estate transaction without certain substantial guarantees. These guarantees may concern repayment of loan proceeds or performance of other services – construction, maintenance and waste prevention, environmental indemnity, etc. The scope of guarantees is highly negotiated, particularly whether the guarantee is recourse or non-recourse and the scope of carve-outs from the guarantees. This program will provide you with a practical guide to negotiating and drafting guarantees in real estate transactions.

  • Types of guarantees – payment, performance, collection, completion
  • Essential elements of a guarantee – consideration, scope, carve-outs, waivers
  • Guarantees for property maintenance/no waste, environmental indemnity and other non-financial concerns
  • Carve-outs – full v. partial, fraud, misappropriation, misapplication, failure to maintain, insurance, and more
  • Guarantees of construction loans


Speaker:

John S. Hollyfield is of counsel and a former partner in the Houston office Norton Rose Fulbright, LLP. He has more than 40 years’ experience in real estate law practice. He formerly served as chair of the ABA Real Property, Probate and Trust Law Section, president of the American College of Real Estate Lawyers, and chair of the Anglo-American Real Property Institute. He has been named a "Texas Super Lawyer" in Real Estate Law by Texas Monthly magazine and is listed in Who’s Who in American Law. He is co-editor of Modern Banking and Lending Forms (4th Edition), published by Warren, Gorham & Lamont. He received his B.B.A. from the University of Texas and his LL.B. from the University of Texas School of Law.