Virginia Beach, June 2005

Williamsburg, February 25, 2005

Williamsburg, January 21, 2005

Charlottesville, September 24, 2004

The Autumn Meeting of the Board of Governors of the Real Property Section of the Virginia State Bar, with Area Representatives in attendance and participating in the meeting, was held at the offices of Virginia CLE in Charlottesville, Virginia on Friday, September 24, 2004.

The following persons were in attendance: Larry J. McElwain, the Section's Chair; Douglass W. Dewing, the Section's Vice-Chair; Grice McMullan, the Section's Secretary-Treasurer; Members of the Board of Governors: Christina E. Meier, Lawrence A. Daughtrey, Stephen B. Wood and Eric V. Zimmerman; Area Representatives: Courtland L. Traver, Lawrence M. Schonberger, Pamela H. Sellers, Craig C. Erdman, Kenneth L. Dickenson, Lucy G. Davis, Randy C. Howard, Paul A. Bellegarde, Mark D. Williamson, Richard B. Chess, and J. Page Williams.

L. McElwain called the meeting to order at 10:00 a.m., and made welcoming remarks and had all attendees introduce themselves.

The minutes of the meeting for the Summer meeting held at Virginia Beach, Virginia on June 18, 2004, were prepared by D. Dewing, but were not available for approval and will be approved at the next meeting of the Section.

A discussion of the finances of the Section was passed over in order to first discuss the status of planning for the 9th Advanced Real Estate Seminar that has been scheduled to take place in two half day sessions at Kingsmill in Williamsburg on February 25 and 26, 2005 for continuing legal education credits of eight hours including credits for two hours for Ethics. L. McElwain said at least one hundred attendees would be required in order to make the seminar economically viable from the sponsor Virginia CLE's perspective. He also pointed out that the traditional Winter meeting of the Section, scheduled for some date in January, was very close in time to the dates when the Advanced Real Estate seminar would be held and asked the opinion of those present as to whether the spring Section meeting should be held just before or after the times scheduled for the Advanced Real Estate seminar or held at a later date. It was the consensus of those present that the Spring Section meeting should be held either immediately before or after the dates on when the Advanced Real Estate seminar would be held.

G. McMullan, who had been involved with other members of the Section in planning for the seminar, then reviewed with those present the tentative schedule of topics and speakers and asked their opinion as to whether they considered the topics and speakers obtained so far created a seminar that would attract real estate lawyers. The consensus was that what had been scheduled so far was attractive.

G. McMullan then requested opinions from those persons at the meeting as to what they would consider additional attractive topics to be presented at the seminar. The suggestions made are as follows:

1. C. Meier stated that it was her opinion, as a lawyer who practiced real estate law primarily in the area of residential real estate and had been doing so for over fifteen years, that those persons practicing in the residential real estate area were probably going to be lawyers who had mastered most of the basic and intermediate issues concerning residential real estate law, and to attract them to the seminar, there would have to be topics of a more sophisticated nature related to their practices. She made the suggestion that a litigation component related to residential real estate disputes including brokerage disputes might be an attractive topic. She suggested further that the component as to litigation and solutions to litigation issues should be one that is fast paced with multiple situations and the solutions to such situations being presented by litigation-experienced lawyers. C. Meier's comments were supported by other attendees at the meeting, as were the following suggestions:

2. C. Erdman suggested that there be a construction law component to the seminar.

3. L. Schonberger suggested that there be part of the seminar that would address what remedies are available when an intended real estate transaction dissolves into a situation where one party or the other to the transaction refuses to perform, such as the remedy of specific performance. He also thought that suggestions as how to avoid situations where parties to a contract might get into disputes, and what lawyers should do when such disputes arise, would be an attractive topic.

4. P. Bellegarde suggested that as an adjunct to any discussions about disputes arising as to what was intended by a real estate contract or what was omitted from it that a presentation on mediation or alternative dispute resolution would be an attractive draw for the seminar.

5. C. Meier and P. Bellegarde both pointed out that different forms for a real estate transfer contract were being used in Tidewater as opposed to northern Virginia and probably were ones that differed from what was being used in other parts of Virginia. They thought that it might be an attractive topic to have speakers address the differences between the various "standard" forms and how those differences should be handled in real estate contract negotiations and closings.

6. M. Williamson pointed out that methods, some controversial and some not controversial, were being used among the Bar for effecting savings on recording taxes and suggested that this might be a good topic.

7. C. Traver recalled that he had read a case whereby a lawyer handling a real estate closing was successfully sued in a malpractice case in which a bank, that had received a real estate escrow deposit from the lawyer, had been taken over by the FDIC in such a way that the deposit was lost. C. Traver suggested that this unfortunate incident might be a good topic for the ethics part of the seminar. C. Traver also suggested that the residential real estate component of the seminar be entitled "Advanced Residential Real Estate Law Topics" or some similar designation.

L. McElwain next stated that the 23rd Annual Real Estate Practice Seminar was scheduled to take place on the following dates at the following locations: May 3, 2005 at Richmond Marriott in Richmond, May 4, 2005 at the Roanoke Wyndham in Roanoke, May 10, 2005 at the Holiday Inn Select in Norfolk, and May 12, 2005 at the Waterford at Fair Oaks in Fairfax. The annual Summer seminar is scheduled to take place at the Summer State Bar meeting in Virginia Beach on June 18 at the Holiday Inn-Sunspree Hotel, where a seminar will be presented in conjunction with the State Bar Environmental Section.

L. McElwain next discussed the Section's finances by pointing out that the budgeted gross income for the Section was approximately $38,900 for the current fiscal year 2005 (from July 1, 2004 through June 30, 2005). This anticipated income was based on a membership of 1,945 members paying their annual dues for membership in the Section at $20 apiece; however, when this income had subtracted from it a 20% rate due to what is anticipated to be for those members who did not send in their dues payments, the income that could be relied upon dropped to just over $31,000. L. McElwain did point out that the 20% rate was suspect in his opinion, if in fact it was for non-paying members, since the Section already has received as of May 31, 2004, the sum of $37,830, which is more than the anticipated net income sum, which would indicate that the 20% loss percentage is too high. L. McElwain said that he would check further as to the exact reasons why this percentage was being subtracted from the gross receipts of the Section.

L. McElwain next informed the attendees at the meeting that due to an overrun of expenses from Fiscal Year 2004, approximately $1,000 would be taken from the income due the Section for Fiscal Year 2005 for application against the Fiscal Year 2004 expense overrun. At this point in the meeting, L. McElwain invited a discussion as to how the expenditures of the Section could be better kept in line with its income.

In order to begin the discussion as to the Section's finances, L. McElwain said that the biggest cost to the Section was its publication of the Fee Simple, which cost over $13,000 to print the May, 2004 issue. He said that if the publications were kept to no greater than 100 pages, the Section could save between $6,000 and $7,000 per year. In discussing the other expenses of the Section, he also said that the salaries to persons responsible for organizing the publication were minimal since Lynda Butler charged nothing to assist with this chore, nor did advisors to the Fee Simple such as C. Traver, and indeed the only compensation was for the services of Felicia Burton. L. McElwain said that the only luxury benefiting the Governors, officers, and Area Representatives who worked for the Section was the free dinner at Steinhilbers after the Summer Section seminar at Virginia Beach.

Finally, L. McElwain pointed out that in past years surpluses had occurred, but the requirement of the Bar authorities was that this surplus be "returned" to the Bar to be placed in its General Fund, so that the Section started each year with no surplus. Therefore, when the Section had surplus funds at the end of a fiscal year, this surplus was, on occasion, exchanged for services from Virginia CLE, which tended to reduce the surplus to zero.

Having been presented with the facts recited, L. Schonberger suggested that the Section (a) consider limiting the size of the Fee Simple to 100 pages or less for its autumn publication and determine on the basis of where the budget stood during the winter whether also to limit the spring edition of the Fee Simple, and (b)consider raising its annual dues. Insofar as the annual dues were concerned, L. McElwain replied as an additional fact to be considered, that the Bar allowed annual dues to be as high as $35 per member, that the highest charging Section of the Bar was the Tax Section, which charged $25 per member, and that the Real Estate Section was the second highest charging Section as $20 per member.

C. Traver pointed out that upon a review of recent past sizes for the Fee Simple, they ranged in size from up to 273 pages to less than 100 pages, and that therefore it would not be difficult to keep the Fee Simple, when necessary, below 100 pages.

Further discussions were held as to an idea to place the Fee Simple on a CD for delivery to all of the Section's members, which D. Dewing said would result in some, but not significant, savings to the Section. He pointed out that the entire Fee Simple could be published on the Section's web site to anyone who wished to read the Fee Simple, whether they were members of the Section or not members of the Section. He pointed out that the site had approximately 2,200 visits during the last recording period, with many of the visits lasting a significant period of time.

Thereafter, other attendees at the meeting questioned the wisdom of putting the Fee Simple on the open web site of the Section (i.e., not requiring members access only), since doing so might lessen the desire of lawyers wishing to benefit from the Fee Simple's articles to pay to join the Section. L. McElwain stated, in answer to a question from D. Dewing, that there seemed to be no drop off in membership when the dues were raised several years ago from $15 to $20. C. Erdman noted that he was against having free access to the Fee Simple, since he considered it provided an edge to his real estate knowledge to be able to access the Fee Simple without having every person, whether lawyer or non-lawyer, being able to access it. C. Erdman also expressed his opinion that for his firm and other small law firms similar to his firm, it was an imposition to have to pay a $5.00 additional charge to belong to the Section; especially since various members of his firm wished to belong to more than one Bar Section.

Other members thought differently about the issue. R. Howard thought that access to the Fee Simple was generally widespread and available to members of the Section and non-members as well, since it was often made available to the public in various reception areas of many law firms.

E. Zimmerman supported the idea of putting the Fee Simple on the Section's web site, but also recommended that the Section continue printing a hard copy of the Fee Simple for reference purposes. G. McMullan said that he seldom read the articles in the Fee Simple except as a reference to work in which he was involved in at the time he read the article and used the Fee Simple primarily as a valuable reference source. C. Traver agreed with G. McMullan that this usage was typical for many Section members, so that a hard copy being available was of real value. E. Zimmerman's preference for continuing to have a hard copy of the Fee Simple received general support among the meeting attendees, including M. Williamson and C. Meier, who expressed their support in other comments concerning the value of having a hard copy available. 10-05-04:

C. Meier also suggested that one way to keep the Fee Simple to under 100 pages would be to not publish with each Fee Simple the long list of who are the officers, Governors, and Area Representatives of the Section, and to be more careful as to the publication's overall lay out and design so that the printing costs could be reduced. She suggested that the autumn edition of the Fee Simple be limited to 100 pages or less and that the spring edition should be limited to 200 pr less pages, with the list of committees and other persons running the Section or representing the Section's areas be only published once each year. C. Traver stated that he would be willing to assist in reviewing the layout and design of the Fee Simple in order to reduce its printing costs.

A motion was then made by C. Meier, which was seconded by P. Williams, and which passed by voice vote among the attendees, that the Fee Simple be limited to 100 pages or less as to its autumn edition, to 200 or less pages for its Spring edition, and that the printing of who were the officers, governors, and Area Representatives be limited to the just one of the annual publications.

Thereafter, a vote as to what should be done regarding placing the Fee Simple on an unrestricted part of the Section's web site was deferred until such time as D. Dewing could provide a cost estimate for bringing the Fee Simple on line within the Section's web site for general public access.

The general discussion of costs continued, and G. McMullan said that at least the Section, which allowed those that worked for and ran the Section to attend without cost the dinner at Steinhilbers, should not allow other persons to attend without paying for their drinks and dinner.

L. Schonberger, on motion that was seconded and unanimously approved, caused a resolution to be passed to the effect that it be announced to the attendees of the Summer seminar and before the Steinhilbers dinner that all persons who were not officers, governors, and Area Representatives identify themselves so that they could be charged for their attending the dinner.

L. McElwain then said that it was the prerogative of the board of governors of the Section to determine if the dues should be increased, and that if an affirmative vote to increase the dues from $20 to $25 were passed it would not be passed until voted on by the actual board and thereafter the recommendation or motion of the board would have to be approved by the State Bar Council (the governing body of the entire Virginia State Bar) at its summer meeting in June 2005. Since this approval would not occur until June, and since the Real Estate Section's members must receive adequate notice of the dues increase before the dues notices are sent out in June, it was likely that the actual increase would not be effective until Fiscal Year 2007. L. McElwain said that he would confirm this delay in increasing the dues and would determine if the increase could be accelerated to Fiscal Year 2006.
Thereafter various Committee Reports were heard as follows:

L. Schonberg described how the Writing Contest was to work and its status. The meeting attendees discussed the merits of having the winning contestants be allowed to publish their articles in the Fee Simple, and that the $1,000 award money was a reasonable sum, which should be divided among the winner and the 2nd and 3rd place article writers in proportions of $500 for 1st place, $300 for 2nd place, and $200 for third place. Some concerns were raised as to the number of articles that might be submitted and their overall quality, but the consensus was that there was sufficient incentive to prepare articles due to the prize money and the recognition that would come from being published. Also the program would encourage participants in that every participant would receive a free one year membership in the Section.

E. Zimmerman on motion seconded by C. Erdman, moved that the program be presented to the Bar Council for final approval, and this motion was approved.

At this point in the meeting, E. Zimmerman was asked to form an ad hoc committee to create a mission statement for the Section.

D. Dewing reported for the Technology Committee by announcing that it is now possible to obtain vital statistics from the Virginia Department of Health on line unless the birth certificate is less than 100 years old and other on line developments, such as reasonably priced security, which is being developed for small and medium law firms as to their computer communications, and a report on the latest articles relating to emailing and general information concerning computers, which report is appended to these minutes.

L. McElwain then suggested as an idea to make the budget more accurate that the travel vouchers for members attending the Section meetings be standardized so that persons coming from various parts of the State receive a flat fee for their travels depending on where they were traveling to and from to attend. C. Meier worried that this fixed sum might encourage inaccurate reporting as to travel distances, and C. Traver stated that such an idea would be prohibited by the Bar Council since its requirements were that accurate mileage be reported. The idea was then discarded.

Upcoming articles and ideas for Fee Simple articles were then discussed.

R. Howard said that he thought an appropriate article might be on underwriting title insurance in a slowing economy.

G. McMullan said that he and L. Davis would prepare an article for the autumn Fee Simple on determination of what law controlled as to personal property for attachment and perfection purposes under the Uniform Commercial Code as to Virginia transactions.

C. Meier thought that an appropriate article might deal with computer backup systems for small firms as to real estate transactions, and Lem Marshall might be able to send in an article as to when should real estate agents should turn over the keys to a dwelling during the closing process.

R. Chess suggested that he and R. Kaplan might be able to prepare an article on private placement memoranda in real estate syndications.

E. Zimmerman thought that it might be timely to have an article published as to time of the essence issues, and that he knew a lawyer who had recently researched the law on rights of way and road issues. In conjunction to E. Zimmerman's idea, L. Davis said that an issue very prevalent in western Virginia was the issue of what to do from a title standpoint as to railroads that had their rights of way running under roads and buildings.

L. McElwain requested that a meeting of just the Governors take place immediately following the general meeting.

Thereafter, on motion by C. Erdman, which motion was duly seconded by P. Sellers, and unanimously passed, the meeting was adjourned.

Respectfully Submitted,

C. Grice McMullan, Jr.

Secretary

AGENDA
FALL MEETING OF THE BOARD OF GOVERNORS OF
THE REAL PROPERTY SECTION OF
THE VIRGINIA STATE BAR

10:00 a.m.
September 24, 2004
The Virginia CLE Building
Charlottesville, Virginia

Welcoming remarks and introductions - McElwain

Review/Approval of Minutes from the June 18, 2004 meeting - McElwain

Financial Report - McMullan

Seminars Report - McElwain

Committee Reports - Committee Chairs

Old Business

New Business

Adjournment

Notes: The past two years this Section has exceeded its budget. After presentation of the Financial Report there will be a discussion regarding ways to ensure that the Section will stay within the confines of this fiscal year's budget. New Business will include setting a time and place for the Spring meeting (The Advanced Seminar will be held in late February, barely one month from the Mid-year meeting). Committee reports should include the status of Fee Simple articles.

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Williamsburg, Virginia
January 2005

The Winter Meeting of the Board of Governors of the Real Property Section of the Virginia State Bar, with Area Representatives in attendance and participating at the meeting, was held at William & Mary Law School in Williamsburg, Virginia on Friday, January 21, 2005.

The following persons (based on execution of the roll sheet or otherwise known to be present) were in attendance: Larry J. McElwain, the Section's Chair; Douglass W. Dewing, the Section's Vice-Chair; Grice McMullan, the Section's Secretary-Treasurer; Members of the Board of Governors or ex officio members: Steven W. Blaine, James M. McCauley, Eric V. Zimmerman, Paula S. Caplinger (Immediate Past Chair), Lucia Anna Trigiani (Council member and VBA Real Estate Council Chair) and Nancy Kern (as Virginia CLE Liaison); Area Representatives: Courtland L. Traver, Kenneth L. Dickenson, Paul A. Bellegarde, Mark D. Williamson, Harry R. Purkey, Jr., Joseph W. Richmond, Jr., Joseph M. Cochran, Susan M. Pesner, Michael E. Barney, Howard E. Gordon, Charles M. Lollar, Cynthia A. Nahorney, Edward R. Waugaman, K. Wayne Glass, David C. Helscher, Joann Wang, and William L. Nusbaum.

Larry McElwain called the meeting to order at 1:00 p.m., and made welcoming remarks and had all attendees introduce themselves.

The minutes of the summer meeting held at Virginia Beach on June 18, 2004 prepared by Doug Dewing and the autumn meeting held at Charlottesville, Virginia on September 24, 2004 prepared by Grice McMullan were approved at the meeting.

A discussion of the finances of the Section next occurred with L. McElwain stating that overall the Section is doing much better as to its expenditures when compared to its income than last year and has some excess money with which to use for other purposes. The main reason for this is due to the fact that the expenses of printing the Fee Simple have been reduced.

L. McElwain and Nancy Kern next discussed the status of the Advanced Real Estate seminar that is to be organized by Virginia CLE with the assistance of the Section, which will take place at Kingsmill in Williamsburg on February 25 and 26, 2005 for continuing legal education credits of eight hours including credits for two hours for Ethics. As of the date of the meeting, forty-three persons had registered for the seminar, bringing the seminar just under half-way towards the necessary number to make the seminar profitable, which number of attendees is one hundred. Nancy Kern said that for this seminar there would be opportunities for more social interaction among the attendees than in the past.

L. McElwain next reviewed the seminars scheduled for the spring and summer, pointing out that the 23rd Annual Real Estate Practice Seminar was scheduled to take place on the following dates at the following locations: May 3, 2005 at the Richmond Marriott, May 4, 2005 at the Roanoke Wyndham in Roanoke, May 10, 2005 at the Holiday Inn Select in Norfolk, and May 12, 2005 at the Waterford at Fair Oaks in Fairfax. The annual Summer seminar is scheduled to take place at the Summer State Bar meeting in Virginia Beach on June 18 at the Holiday Inn-Sunspree Hotel, where a seminar will be presented in conjunction with the State Bar Environmental Section. After the seminar, there would be a joint meeting of the Section with the Virginia Bar Association's Real Estate Council, and in the evening there would be the customary dinner of the Section at Steinhilbers. L. McElwain said that the date for the autumn Section meeting had not yet been determined.

Nancy Kern also pointed out that there would be a seminar presented by Pia Trigiani and David Mercer as to Community Associations in Richmond on March 29 and in Fairfax on April 6 with video replays in six other locations on May 10 for four MCLE credit hours.

Thereafter various Subcommittee Reports were heard as follows:

For the Commercial Real Estate Subcommittee, Grice McMullan reported that the team concept seemed to be working very well with four set of teams having prepared articles for the Fee Simple and with articles from the next teams expected for its spring edition.

Steve Wood, as the Chair was not present to report for the Creditors Rights and Bankruptcy Subcommittee nor was Christina Meier present to report for the Residential Real Estate Subcommittee.

For the Ethics Subcommittee, Susan Pesner reported that the biggest issue existing at the current time is the fact that various banks and title insurance agencies are combining forces to agree as to what title insurance rates will be charged by stating if a certain title agency is used there will be a cut rate for doing so. L. McElwain stated that he was not sure if this issue should be handled by the Ethics Subcommittee or by the Title Insurance Subcommittee or perhaps both should work together to address the issue.

Another companion issue was raised by Jim McCauley as to the fact that even though there is a statute prohibiting attorneys or settlement agencies from receiving reassignments of the right to pursue banks that have not released liens within the required time and therefore incurring a $500 penalty, there have been cases where attempts have been made to circumvent the statute by setting up independent entities that were neither attorneys nor settlement agents to take such a reassignment. Following an extended discussion among the meeting attendees, L. McElwain stated that he would like to have the Ethics Subcommittee report on whether or not there is an ethical issue as to whether an independent entity can be set up to take reassignments of such claims.

P. Trigiani next handed out certain bills currently being tracked by the VBA and specifically discussed two bills, Senate Bill 982 and House Bill 2821. SB 982 requires title insurance companies to issue insurance only at published rates. P. Trigiani pointed out that this issue is not a new legislative issue, having come up in 1993. Charles Menges has offered and is willing to get involved on behalf of the VBA to represent the VBA in meetings where the bill will be discussed, in order to speak against the bill. P. Trigiani also said that the VBA Council's Executive Committee supported a recommendation to oppose this bill.

House Bill 2821 authorizes title insurance companies to charge risk rates that it negotiates with a potential insured. Such rates shall be presumed not to be unfairly discriminatory if they are sufficient to furnish a reasonable margin for profit after provision for probable losses, exposure to loss under policies, allocations to reserves, costs of participating insurance, operating costs and other items of expense fairly attributable to the operation of the business, and are not unfairly discriminatory between risks involving essentially the same hazards and expense elements. P. Trigiani said that this bill softens SB 982 somewhat, and the VBA Council Executive Committee is recommending support for this bill.

P. Trigiani also discussed, among other bills currently being debated, a bill concerning the Uniform Trust Act, which is being supported by the VBA's Trusts and Estate Section and Senate Bill 1267, which makes the necessary changes in the Code to provide for the incorporation of previously unincorporated churches. The bill also includes a redefinition of "church" and "minister."

An interesting bill was next discussed concerning condemnation, which was Senate Bill 301. This bill provides that if property acquired by the power of eminent domain is declared surplus within 15 years of the condemnor's being vested with title, the condemnor must offer to sell the property to the former owner at the original sale price plus interest at an annual rate of six percent, with price adjustments made for any improvements to the property.

Senate Bill 920 was also discussed, which allows cities and counties to impose a fee not to exceed $250 on certain recorded instruments that are subject to the state recordation tax. The fee will be paid by the grantor and will only be allowed in localities having a growth rate in kindergarten through 12 school-age population of one-half percent over the previous three years combined growth rate. Also, affordable housing is exempt from the fee. The revenues generated by the fee are to be used by the locality for public school capital projects. Various opinions were expressed as to this bill and SB 301.

Next, House Bill 2604 was discussed, which provides that a possibility of reverter or a right of re-entry is extinguished if the specified contingency does not occur within 30 years after such possibility or right was created. Any person owning such possibility or right may record an initial or renewal notice of intention to preserve such interest for a subsequent 30-year period. Grice McMullan asked for opinions as to this bill, and, after several comments about the effect of and examples involving reverter as well as what other states were legislating as to the reverter issue, disapproval of the bill as written was registered by Court Traver. It was finally agreed that a recommendation be made that the bill be returned for further study, and that to the extent that the VBA be allowed to participate in the study, it be allowed to do so.

Finally discussions were held as to House Bill 1588, which makes the provisions governing removal of residential unlawful detainer actions applicable to unlawful detainer actions involving commercial tenancies and House Bill 2542, which provides that "person under a disability" shall not include an incarcerated person for purposes of executing a will, powers of attorney, deeds, or deeds of trust.. Ed Waugaman expressed support for HB 2542. A bill not listed on the report provided was raised by Ed Blaine in the land use area where there was an attempt to cap the tax credit imposed on easement tax credits.

Ed Waugaman stated that there was nothing to report from the Title Insurance Subcommittee and Doug Dewing stated the same for the Technology Committee.

L. McElwain stated that the results of the survey of readers of the Fee Simple would be discussed at the spring meeting of the Section. He also stated that the idea for a law student writing contest had received favorable approval by the Bar Council. Also that it had been decided not to try to expedite an increase in the dues at this time. L. McElwain stated that in any event the dues increase would not go into effect until one year after its adoption.

Joann Wang was introduced to the Board as a candidate to be a new area representative for the Northern Region, and she was moved to be admitted by Susan Pesner, which motion was seconded and unanimously approved.

On motion made, seconded, and unanimously approved the deepest sympathy was expressed by the Board on learning of the deaths of the wives of J.B. Lonergan and Ed Waugaman.

Upon motion made and seconded the meeting was adjourned.

Respectfully Submitted,

C. Grice McMullan, Jr.

Secretary

AGENDA
WINTER MEETING OF THE BOARD OF GOVERNORS
OF THE REAL PROPERTY SECTION OF THE VIRGINIA STATE BAR
January 21, 2005
Location: Marshall Wythe School of Law, Room 127
Williamsburg, Virginia

Welcoming Remarks and Introductions - McElwain

Review/Approval of Minutes from the June 18, 2004 and September 24, 2004 meetings - McElwain

Financial Report - McMullan

Seminars Report - McElwain

Committee Reports - Committee chairs

Old Business

News Business

Adjournment

Note: Immediately subsequent to our meeting there will be an informal meeting with the leadership of the Real Property Section of the Virginia Bar Association. Everyone is encouraged to attend with the hope that we can identify projects and/or areas where cooperation will be beneficial to both groups.

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KINGSMILL RESORT
WILLIAMSBURG, VIRGINIA

The Spring Meeting of the Board of Governors of the Real Property Section of the Virginia State Bar, with Area Representatives in attendance and participating at the meeting, was held at Kingsmill Resort in Williamsburg, Virginia on Friday, February 25, 2005.

The following persons (based on execution of the roll sheet or otherwise known to be present) were in attendance: Larry J. McElwain, the Section's Chair; Douglass W. Dewing, the Section's Vice-Chair; Grice McMullan, the Section's Secretary-Treasurer; Members of the Board of Governors or ex officio members: Eric V. Zimmerman, Paula S. Caplinger (Immediate Past Chair), Lawrence A. Daughtrey, Jean D. Mumm and Nancy Kern (as Virginia CLE Liaison); Area Representatives: Courtland L. Traver, Paul A. Bellegarde, Mark D. Williamson, Joseph W. Richmond, Jr., Susan M. Pesner, Michael E. Barney, Howard E. Gordon, Cynthia A. Nahorney, Edward R. Waugaman, Ray W. King, David C. Helscher, Joann Wang, William L. Nusbaum, Lawrence M. Schonberger, and Randy C. Howard. There were also two guests in attendance who were Philip Miller and Bonnie Taliaferro.

Larry McElwain called the meeting to order at 10:30 a.m., made welcoming remarks and had all attendees introduce themselves.

The minutes of the winter meeting held at the William and Mary Law School in Williamsburg on January 21, 2005 were approved at the meeting.

A discussion of the finances of the Section next occurred with L. McElwain stating that overall that the Section is doing much better than last year as to its expenditures when compared to its income, and may have some excess money with which to use for other purposes. The main reason for this is due to the fact that the expenses of printing the Fee Simple have been reduced.

L. McElwain then discussed the status of the Advanced Real Estate seminar that was to take place after the meeting, saying that it was fully subscribed with a waiting list.

Doug Dewing next reviewed the seminars scheduled for the spring and summer and described in detail the program for the 23rd Annual Real Estate Practice Seminar that was scheduled to take place in Richmond on May 3, in Roanoke on May 4, in Norfolk on May 10, and in Fairfax on May 12. As was stated at the Winter meeting, the annual Summer seminar is scheduled to take place at the Summer State Bar meeting in Virginia Beach on June 18 at the Holiday Inn-Sunspree Hotel, where a seminar discussing issues surrounding environmental site assessments will be presented in conjunction with the State Bar Environmental Section. L. McElwain said that Lisa Murphy, who is involved with organizing the seminar, had requested that an additional speaker be found, preferably with banking and/or insurance experience, to also speak at the seminar. After the seminar, there would be a joint meeting of the Section with the Virginia Bar Association's Real Estate Council, and in the evening there would be the customary dinner of the Section at Steinhilbers. L. McElwain said that the date for the autumn Section meeting had not yet been determined.

On a call for committee reports, L. McElwain first asked Court Traver about the Fee Simple Newsletter Committee report, upon which C. Traver said that since the last Fee Simple had just been sent out, very little work had been yet done for the next Fee Simple. Thereafter a discussion was held as to what articles various persons attending the meeting might be working on. J. Wang said that she was preparing an article on prepayment penalties and W. Nusbaum said that he was willing to prepare an article on subleases. L. McElwain then suggested that an article on ground leases might be appropriate. Thereafter it was pointed out that if a ground lease article was to be prepared, it should be on a specific issue or issues pertaining to ground leases, since ground leases were discussed generally in the Third Edition of the Landlord-Tenant Law and Practice Handbook published by Virginia CLE. C. Traver stated, however, that there had been recently cases addressing the issue of when a ground lease may be extinguished in a situation where the landlord has declared bankruptcy. G. McMullan said that one of the topics for today's Advanced Real Estate Seminar was to have this issue addressed as to all lease situations where a landlord has declared bankruptcy.

As the discussion continued concerning other articles that might be of interest for publication in the Fee Simple, E. Waugaman thought that the issue of land sales under installment sales contracts would make a good topic in light of whether such a contract would survive the bankruptcy of the seller, and E. Zimmerman said that he would contact an attorney he knows in the northern Virginia area to write on the subject of land contracts, since that attorney has recently been extensively involved with them. E. Zimmerman also said that he would volunteer one of his associates to write an article on the actual meaning of time of the essence clauses.

The topic of 1031 tax deferred exchanges was raised and was discussed as a possibility for an article. D. Helcher said that there had been recent issues raised as to 1031 exchanges when tobacco allotments were involved. L. McElwain said that he would contact Louis Rogers on preparing an article on various current aspects of 1031 exchanges, such as the use by tenants in common as to this tax deferral device.

A discussion was then held as to the Membership Committee. L. McElwain said that he, Randy Howard, and C. Traver had recently met and discussed the future of the Section from a membership standpoint. The consensus from the meeting was that there was a danger of the Section gradually losing members; especially since the Section was not obtaining younger members to replace those members who would retire as practicing real estate lawyers. L. McElwain first read a list that was prepared by R. Howard and him as to the various kinds of real estate practices there were by those persons who practiced real estate law. He said that a major purpose of this Section was to educate Virginia's real estate lawyers as to those kinds of real estate practice and a major purpose of the VBA Real Estate Council was to protect real estate lawyers from ill-prepared or poorly considered statutes affecting real estate law in Virginia.

L. McElwain said that he thought that in order to better serve Virginia's real estate lawyers three new committees should be created, with the first one being a liaison committee with the VBA in order to assist them as to better reviewing new laws proposed by the legislature.

The second committee that L. McElwain suggested be created was one that would be a liaison committee with the Virginia Clerk's Association. A discussion was then held as to G. McMullan's past attempt to achieve coordination with the Clerk's Association, which attempt was unsuccessful for reasons that were discussed. The reasons seemed to be ones primarily associated with the Clerk's perception that the VSB had not that much to offer that would benefit the Clerk's Association and a general reluctance to have outsiders attend their meetings.

The attendees at the meeting determined that it might be best if G. McMullan could discuss with Clerks located in jurisdictions near to him if they thought there might be a need for such a liaison committee, and would they support such an idea that might allow a VSB member to attend their meetings and one of their members to attend meeting of this Section or the meetings of the VBA. Contingent on such an acceptance of the idea by the Clerk's Association, a motion was made, seconded, and approved that such a committee be formed with G. McMullan to initially chair the committee and have a right to appoint sufficient members to the committee should no one volunteer to serve. A motions was also made at the same time, seconded, and approved that a committee be created to serve as a liaison committee with the Virginia Bar Association. As for the Committee to serve as a liaison committee with the Clerk's Association, S. Pesner said that she thought that there should be representatives on the Committee that came from all parts of the Commonwealth so that the Clerks could identify with representatives of the Committee. Thereafter a discussion occurred, primarily by C. Traver and E. Zimmerman, as to ways this Section's newly formed Clerks Liaison Committee could provide valuable services to the Clerk's Association. Assistance in helping upgrade the technology in the smaller and less well funded Clerk's offices, support for the legislation that the Clerk's Association wanted passed, and exploring the possibility of providing assistance to the smaller Clerk's offices by volunteer lawyers was discussed.

The third committee that L. McElwain suggested be established was one which dealt with the financial aspects of real estate, and R. Howard presented to the Board and Representatives the reasons for forming such a committee. R. Howard pointed out that the practice of real estate law has evolved so that many lawyers spend a significant amount of their time in handling the financial aspects of real estate transactions by representing lenders and developers of commercial projects who become borrowers. He said that there is no other section within the Virginia State Bar that has a section devoted to this type of practice, and he therefore thinks it might be a committee that would attract new members to the Section. At this point in the meeting, a suggestion was also made for consideration that it might be wise to change the name of the Section so that it included a reference to the financial aspects of real estate law. L. McElwain said that before we enter into a discussion as to such a name change, we should first determine if the Section would be allowed to change its name.

G. McMullan suggested at this point that it might be a good idea to combine any finance committee with the Commercial Real Estate Committee. L. McElwain and S. Pesner also wanted to obtain the names of those lawyers who worked in the finance area including as in-house lawyers for those lenders and borrowers (such as Ryan Homes) who loaned or borrowed significant amounts of money in Virginia.

Next, G. McMullan reported briefly for the Commercial Real Estate Committee, stating that everyone on it were submitting articles for the Fee Simple in a prescribed order based on two teams of two persons each preparing articles by a prescribed date.

The meeting then discussed other methods of raising the membership within the Section. M. Barney said that he recalled from the past that when a seminar that dealt with the "first day in practice" concept was regularly presented, it assisted in raising the membership of the Section. R. Richmond said that recently the first day in practice seminars had decreasing attendance. Thereafter a discussion was held as to reasons for the Section not acquiring new members, such as the fact that the bigger Virginia law firms are not supporting the efforts of the Sections within the Bar. L. McElwain said that the dues for the Section will be increased to $25 per member, which is at a level with the most expensive Sections to join. E. Zimmerman also pointed out that formerly almost all lawyers at least engaged in general real estate closings, which is no longer the case.

One result from the foregoing discussion was a motion made, seconded, and passed to include in the Fee Simple an invitation to join the Section. Another was that L. McElwain will try to get a list of all lawyers who are members of the Section from VSB headquarters. C. Traver suggested that consideration should be given to the idea of making Section members join a committee, and if they did not join a committee, select a committee for them to join. Another suggestion was that at least each board member should be required to be involved actively in the work of a committee. E. Zimmerman stated that we must obtain a list of the Section's membership and also a notice when a lawyer joins the Section. Thereafter, anyone joining should be promptly contacted in order that some member of the Section could welcome them and discuss getting them involved with a committee. E. Zimmerman went on to say that Area Representatives or Board members should maintain contact with members within their areas and especially those members who have just joined the Section and ask them what is going on as to real estate law in their practice and how can the Section help them. E. Zimmerman pointed out that no Section member will be willing to be active in the Section unless the Section indicates it is also willing to help that member.

L. McElwain then stated that there was no report from the Creditors Rights and Bankruptcy Committee, since S. Wood was absent, and the same was the case as to the Land Use and Environmental Committee since S. Blaine was absent. S. Pesner said for the Ethics Committee said that her Committee had nothing that it was required to do at the current time. One suggestion for the Ethics Committee was to make a study of the feasibility of having law firms owning title agencies. A warning as to this kind of activity was made to the effect that it may be dangerous to take a stand on various ethics issues, since this is more within the province of the State Bar itself. The consensus of the meeting seemed to be that the Ethics Committee should not be proactive, but be reactive; i.e., not produce recommendations or opinions unless specifically called upon to do so by the Bar.

L. McElwain stated that there would be no report from the Residential Committee since C. Meier was not present at the meeting. E. Waugaman for the Title Insurance Committee reported that House Bill 2821 passed and will go into effect if the Governor signs the Bill. This bill authorizes title companies to establish risk rates pursuant to negotiations for what will be charged for title insurance.

L. McElwain reported that there is nothing new as to the writing contest by law students, and he pointed out that the time for nominations for the Gardner DeMallie award would be necessary soon.

D. Dewing stated that the Technology Committee had turned in its report, and that Betty Jean Ostergren with Virginia Watchdog was on television arguing her case about the need to eliminate on-line access to court records. D. Dewing informed the Section as to how her television presentations and other presentations by her could be accessed.

L. McElwain then again reminded everyone at the meeting as to the next meeting being scheduled for June 18 at Virginia Beach.

Upon motion made and seconded the meeting was adjourned.

Respectfully Submitted,

C. Grice McMullan, Jr.

Secretary

The next meeting of the Real Property Section of the Virginia State Bar will be held on February 25, 2005 at Kingsmill Resort. The schedule is as follows: Kingsmill Resort 1010 Kingsmill Road Williamsburg, VA 23185 (757) 253-1703

10:30 - 11:30 Area Representatives and Board of Governors Meeting
11:30 - 12:00 Voluntary meeting with the Real Property Section of the Virginia Bar Association
12:00 noon A Buffet Lunch is offered at a cost of $15.99. All are invited.
1:00 Advanced Real Estate Seminar begins.

AGENDA

"SPRING" MEETING OF THE BOARD OF GOVERNORS
AND AREA REPRESENTATIVES
OF THE REAL PROPERTY SECTION OF THE VIRGINIA STATE BAR
10:30 AM
FEBRUARY 25, 2005
THE RANDOLPH ROOM, KINGSMILL RESORT
WILLIAMSBURG

Welcoming remarks and introductions - McElwain

Review/Approval of Minutes from the June 18, September 24 2004, and January 21, 2005, meetings - McElwain

Financial Report - McMullan

Seminars Report - McElwain

Committee Reports - Committee Chairs

Old Business

New Business

Adjournment

Notes:

Our meeting is scheduled for 10:30-11:30, to be followed by an informal meeting with the leadership of the Real Property Section of the Virginia Bar Association. Everyone is encouraged to attend. Beginning at noon there is a buffet lunch offered ($15.99)

Nominations for the Gardner G. DeMallie, Jr., Continuing Legal Education Award will be sought.

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THE SKYTOP ROOM
HOLIDAY INN SUNSPREE
VIRGINIA BEACH, VIRGINIA

June 17, 2005

The Summer Meeting of the Board of Governors of the Real Property Section of the Virginia State Bar, with Area Representatives in attendance and participating at the meeting, was held at the Holiday Inn Sunspree in Virginia Beach, Virginia on Friday, June 17, 2005 commencing at 12:30 pm.

The following persons (based on execution of the roll sheet or otherwise known to be present) were in attendance: Larry J. McElwain, the Section's Chair; Douglass W. Dewing, the Section's Vice-Chair; Grice McMullan, the Section's Secretary-Treasurer; Members of the Board of Governors or ex officio members: Paula S. Caplinger (Immediate Past Chair), Lawrence A. Daughtrey, Jean D. Mumm and Nancy Kern (as Virginia CLE Liaison); Area Representatives: Courtland L. Traver, Lucia Anna Trigiani, Joseph W. Richmond, Jr., Susan M. Pesner, William L. Nusbaum, J. Page Williams, Pamela W. Sellers, Barbara Goshorn, Lisa M. Murphy, and Randy C. Howard. Herman W. Lutz, a member of the Section from Alexandria, also attended the meeting.

Larry McElwain called the meeting to order at 12:30 a.m., made welcoming remarks and had all attendees introduce themselves.

The minutes of the spring meeting held at the Kingsmill Resort in Williamsburg on February 25, 2005 were unanimously approved at the meeting, subject to changing one inconsistent date in them as to the date of the spring meeting.

A discussion of the finances of the Section next occurred with L. McElwain stating that overall that the Section does not have all of the information necessary to determine whether or not the Section is within its budget, since there remain some miscellaneous bills resulting from publishing the Fee Simple and some charges for the presentation made just prior to the present meeting, but it would appear that the Section will be just under its budget for 2005.

D. Dewing next discussed the results from the Annual Seminar that was conducted during May in Richmond, Roanoke, Norfolk, and Fairfax, which apparently was well received, although not all of the solicited comments have been sent back to him. The programs apparently had a good mix of topics of interest to its audiences, and appreciation was expressed by Mr. Dewing to all of those who participated in organizing and speaking at the seminar. C.Traver stated that the Advanced Seminar was in the planning stages, and a meeting would be held during the afternoon after this meeting to discuss further topics that could be presented.

A brief discussion of the latest edition of the Fee Simple was then held, with a reminder from L. McElwain to those present at the meeting that articles were always needed.

Possible dates for the autumn meeting of the Section were held, and L. McElwain said that the meeting would be held in Charlottesville. L. McElwain stated that if enough interested members of the Board would be staying in Charlottesville over the Friday night of the day that the meeting would be held, there would be a cocktail party after the meeting at his residence.

On a call for committee reports, L. McElwain stated that only a few committee reports had been received, and he thanked those who did prepare them. L. McElwain stated that whereas D. Dewing had sent him a report from the Technology Committee, that report would be available to the Board at the autumn meeting of the Board. L. McElwain stated that since the Section and its meetings were principally driven by its committees, it was vital that the committees become more active and thereafter report to him for presentation to the Board. L. McElwain expressed disappointment at the level of participation by the leaders of many of the committees.

L. McElwain reported on the status of the Writing Contest, which is being organized by Larry Schonberger, who unfortunately was unable to attend due to business commitments. Apparently the Writing Contest will be announced in the next Fee Simple, where solicitations for articles will be made. There will apparently be three categories for prizes, with the winners of the contest being determined by a committee that is to be named.

The last item pertaining to matters discussed at earlier meetings was to vote on an annual dues increase to $25.00, which, on motion made and seconded, was unanimously passed.

Two nominees for Area Representatives were announced. L. McElwain nominated Barbara Goshon from Palmyra (Central), and since J. Epperly was unable to attend, L. McElwain nominated Paul Melnick from Falls Church (Northern) on his behalf. After receiving seconds from the floor, the new Area Representatives were elected.

L. McElwain then stated that Christina E. Meier, Stephen B. Wood, Paula S. Caplinger, and himself would be leaving the Board membership, since their terms had expired, thereby creating three vacancies on the Board that must be filled. Since L. McElwain will become an immediate past Chair, he can and will remain as a Board member. The nominating committee nominated Jean D. Mumm to serve as the Secretary to the Section; C. Grice McMullan as Vice Chair; Douglass W. Dewing as Chair; and Joseph M. Cochran, Paul A. Bellegarde and Randy C. Howard as new Board members. Upon motion duly made and seconded, the nominations were closed, and the slate of nominees for Directors and Officers were elected. L. McElwain then returned to the membership as D. Dewing assumed the Chair.

D. Dewing again reminded the Board of the importance of the Committees since the Section works through its committees and then the committees, which report to the Board and its officers, work through the Section's members. A discussion was then held as to how best to revive the system of using and strengthening the committees by contacting the membership and encouraging them to join a committee.

D. Dewing expressed his thanks, on behalf of the Board and the
membership, to P. Caplinger as immediate past Chair, and L. McElwain as outgoing Chair. He presented both with a plaque commemorating their board services, and noted similar plaques would be delivered to C. Meier and S. Wood. D. Dewing also presented L. McElwain with a gavel to commemorate his services as Chair. As P. Caplinger, S. Wood and C. Meier's board terms had expired, D. Dewing nominated them to serve as Area Representatives. Whereupon a motion was made and seconded to close any further nominations for Area Representative positions, and all three nominees were elected.

A brief discussion was held about the fact that the entire numbering system of the Virginia Code was imminent.

D. Dewing reminded those in attendance of the Section Dinner to be held at Steinhilbers, beginning at 6:00 p.m.

There being no further business, upon motion duly made, seconded, and unanimously passed, the meeting was adjourned.

Respectfully Submitted,

C. Grice McMullan, Jr.
Secretary

AGENDA
"SUMMER" MEETING OF THE BOARD OF GOVERNORS AND AREA REPRESENTATIVES
OF THE REAL PROPERTY SECTION OF THE VIRGINIA STATE BAR
12:30 PM
J UNE 17, 2005
THE SKYTOP ROOM, HOLIDAY INN SUNSPREE VIRGINIA BEACH

Welcoming remarks and introductions - McElwain

Review/Approval of minutes from the February 25, 2005, meeting McElwain

Financial Report - McElwain

Seminars Report - Dewing

Committee Reports - Committee Chairs

Old Business

Writing Contest - Schoenberger
Dues Increase - McEIwain

New Business

Recognize New Area Reps - McElwain
Nomination/Election of Officers

Adjournment

Notes: The meeting of the Board and Area Representatives will reconvene at Steinhilber's Restaurant for cocktails (6:00) and dinner (7:00).

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