Virginia State Bar

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Real Property

A Section of the Virginia State Bar.

Meeting Minutes - January 18, 2002

Minutes of the Virginia State Bar
Real Property Section
Board of Governors

Williamsburg, Virginia

The Winter meeting of the Board of Governors of the Real Property Section of the Virginia State Bar was held on Friday, January 18, 2002, at 12:00, in Room 120 of the Marshall-Wythe School of Law, College of William and Mary in Williamsburg, Virginia.

The following persons were in attendance: Patrick R. Pettitt, Paula S. Caplinger, Christina E. Meier, Paul A. Bellegarde, Ray W. King, Grice McMullan, Jay Steele, John David Epperly, Jean Mumm, Susan Siegfried, Neil Kessler, Jane Marum Roush, Courtland Traver, Susan Pesner, Steven W. Blaine, David C. Helscher, J.B. Lonergan, Howard E. Gordon, Michael E. Barney, Lucia Anna Trigiani, Steve Wood, Steve Romine, Karen French, Doug Dewing, Joe Cochran, Rick Richmond, Wayne Glass, Jim Plumhoff, Rob Pearsall, Chris Dillon, Lynda Butler, Dan Goodwin, Kathleen Michener, Larry McElwain and Lawrence Schonberger. Lawrence Schonberger, Chair, conducted the meeting. Paula Caplinger, Secretary, kept the minutes.

Mr. Schonberger called the meeting to order. (See official Agenda below.)

Mr. Schonberger presented the minutes of the September 15, 2001, meeting of the Real Property Section and upon motion duly made, and seconded, the minutes were unanimously approved as written by those who attended the September 15, 2001 meeting. Those not in attendance at the September meeting abstained.

Due to a scheduling conflict which required his departure, the meeting agenda was shifted and next Steve Romine offered his report on upcoming CLE Seminars and Workshops. Steve reported that the 20th Annual Seminar is progressing well. Seminar dates of May 9 (Norfolk), May 10 (Richmond), May 16 (Falls Church) and May 17 (Roanoke) have been established. The moderators have been selected for all locations. The seminar will be submitted for six hours of continuing legal education credit. The topics being discussed for the seminar include: one hour of ethics, one hour relating to title insurance coverage issues, one hour by panel discussion on lending/lender issues, one hour on a landlord/tenant topic and one hour each on current legislation and a case law update. The presenters doing the case law and current legislation topics, as well as the group, feel more time, rather than just an hour, should be devoted to this portion of the program. The Business Law Section of the Virginia State Bar has contacted Steve regarding the possibility of a cooperative program at the Summer Meeting. The program topic is as yet undetermined. The Section has requested the same room and meeting time as in prior years.

Mr. Schonberger introduced Paul Bellegarde, a new area representative from northern Virginia.

Mr. Schonberger gave the financial report. He reported a balance of $27,075.00 as of December 31, 2001. Based upon his evaluation of past budgets and expense projections for the year 2002, a budget short-fall is imminent. An anticipated deficit of $4000 will occur in 2002 unless the dues for the Section are increased. A discussion by the group followed centering on possible ways to conserve costs and the impact of a dues increase.

One approach suggested to cut costs was to request Virginia CLE absorb the expense of the legal research necessary to produce the legislative and case law portion of the Annual Seminar. Another idea proposed was to review the pricing of the Annual Seminar; perhaps giving Section members an additional discount and offsetting that cost with an overall increased seminar fee. Court Traver, Neil Kessler and Rick Richmond agreed to consult with Lee Hickok on these issues and report back to the group.

Based on the budget and the anticipated deficit, even if cost savings are achieved, the consensus of the group was that a dues increase was still necessary. Upon motion duly made and seconded, the Board of Governors and the membership voted to increase the Section dues to $20, effective with the next fiscal year.

Next, Larry McElwain reported that the planning for the Advanced Real Estate Seminar to be held April 12 and 13, 2002 at the Boar's Head in Charlottesville is now complete. A variety of topics including new products in title insurance, ethics, land use issues and caveat emptor are slated for the program. Chicago Title has agreed to sponsor a cocktail reception on Friday evening. Our next Board meeting will follow the Saturday session of the seminar. This promises to be a fun weekend and a good opportunity for continuing education.

Doug Dewing provided an update on the activities of the Trust and Estates Sections' proposed revisions to Virginia Code 64.1. The legislators have suggested to Tom Michie that he and members of his committee discuss the impact of their proposal with various Virginia commissioners of accounts. As a result of these conversations, legislation to revise Virginia Code 64.1 was not introduced in this session of the General Assembly. Since the legislation has effectively been "tabled," the funds allocated by the Section, for research on the impact of this legislation on real estate transfers in Virginia, are also being held in reserve.

Larry Schonberger announced that Steve Gregory has informed him that due to a conflict of interest, he will not be able to provide proposed language to present to the General Assembly which would refine the definition within the MLA Statute of residential construction. This matter has been tabled.

Doug Dewing reported that the legislature has pending before it changes to the "notice" provisions of the mechanic's lien agent section of the Code.

On behalf of the Bankruptcy Subcommittee, Steve Wood and the group offered several ideas as possible topics for the Annual Seminar. Some of the suggestions included: "The Treatment of Leases in Bankruptcy," "Chapter 13 Cases: What can a debtor do with his real estate?" and "The Soldiers and Sailor's Relief Act." Kathleen Michener agreed to present these ideas to Steve Romine along with a possible speaker, Alex Laughlin, to cover any of these topics.

Pia Trigiani reported on behalf of the Current developments and Legislation Subcommittee. There are a number of bills pending. The legislature has sought feedback from the legal community on certain of this legislation and that is very important since the number of "lawyer/legislators" has declined. Some bills of note include: Senate Bill 526, which requires the performance of a title search before a title commitment or policy is issued. Senate Bill 527, which clarifies that a lender can hand deliver a certificate of satisfaction to the clerk's office and thereby meet the 90 day recordation requirement. Senate Bill 528, dealing with Certificates of Satisfaction. Senate Bill 67 dealing with the power of a settlement agent to execute a release. House Bill 440 amending CRESPA to modify the definition of "settlement agent." Senate Bill 512, dealing with business trusts. Larry Schonberger asked Pia to include our membership on notices she may send to the VBA membership regarding pending legislation. Pia agreed to do so and asked anyone with comments on the legislation to contact her or other members of the VBA. She also stressed the ease with which one may access the legislation on-line.

Jean Mumm presented a report on behalf of the Environmental Committee. On December 21 Congress passed HR 2869, which became law January 11. Jean suggested this may be a good possible topic for a future "Fee Simple" article. Jean also announced that there have recent changes to the Clean Water Act which will facilitate obtaining permits to dredge and fill wetlands. These changes are controversial. Jean generally updated the group on the Environmental Covenants Project (a remediation plan/covenant regime). She has submitted, and Mr. Schonberger has accepted her resignation as subcommittee chair. Effective immediately, the Environmental Subcommittee will be combined with the Land Use Subcommittee and will be chaired by Steve Blaine.

On behalf of the Ethics Subcommittee, Susan Pesner reported that members of the Section should consider joining committees at the State Bar level. With many future issues facing the State Bar, such as multidisciplinary practice, involvement by our membership is very important. Susan inquired if any members have had difficulties with any State Corporation Commission audits? No difficulties were reported. She also offered that the Bar has asked every section to stress the importance of having a succession plan to small and solo practitioners. This could also be a good "Fee Simple" article.

Rick Richmond reported that the First Day in Practice session was well attended.

Rick Chess reported that he is reactivating the Housing Subcommittee. The subcommittee has two other members and others are encouraged to join.

On behalf of the Information and Technology Subcommittee, Doug Dewing reported that there is currently legislation pending requiring continuing education for notaries.

Steve Blaine reported that the Land Use Subcommittee has been active in assisting Virginia CLE in revamping the land use seminar which will be held next month.

Paula Caplinger reported on behalf of Randy Howard for the Membership Subcommittee. The Real Estate Section is still a strong second so far as active and associate members, but third overall due to the number of judicial members in the Criminal Section. The group discussed the possibility of extending section membership, at no cost, to members of the judiciary. The consensus, however, was that due to current budgetary constraints, the benefits of increasing our membership numbers would not outweigh the cost.

Lynda Butler provided a list on behalf of the Newsletter Subcommittee of the articles she currently has slated for the May 2002 "Fee Simple." The deadline for submissions is April 19, 2002. Lynda asked the group for additional suggestions for articles. Possible topics offered were: "Defeasance Provisions in Commercial Loan Documents"-Ray King, "Limitations on Abilities of Convicted Felons to Sell Real Property"-Steve Gregory, "Automatic Subordinations," "Privacy/Disclosures Issues"-Rick Chess, "Enhanced Title Policies/Leasehold Endorsements"-Jeanne LaBelle, "Reverse 1031 Exchanges"-Louis Rogers, "Business Trusts"-Mike Pace and a checklist or form to show the availability of different owner's title insurance products and the differences in owners policies. The list of subcommittee membership has become quite dated. Larry Schonberger agreed to review the subcommittee lists and provide Lynda with an updated list for the "Fee Simple."

No reports were offered by the Small Firm and Sole Practitioner Subcommittee and the Title Insurance Subcommittee.

On behalf of the VBA Forms Subcommittee, Rick Richmond reported the VBA Real Estate Section announced this morning the goals of reviewing all current real estate forms and keeping them updated and developing "mini-forms" with annotations. The Virginia Real Estate Transactions Manual (two volumes with a CD of forms) is now available. Rick Richmond, Court Traver and Neil Kessler would like to thank all those who participated in this project. Neil Kessler suggested a "Fee Simple" article for the future might address "search standards in Virginia." An updated "form engagement letter" might also be a good "Fee Simple" topic.

On behalf of Bar Counsel, Ray King reported that recent complaints he has addressed should cause real estate lawyers to examine their record retention policies for closed files. There is no statute of limitations on disciplinary complaints. He recently reviewed two complaints involving cases that were over 15 years old. It may be necessary to keep closed real estate files in perpetuity.

No report was offered on behalf of the Old Dominion Bar Association.

There was no old business discussed.

There was no new business discussed.

The meeting adjourned by motion duly made, and seconded at 2:20 p.m.

Respectfully Submitted,

Paula S. Caplinger Secretary


January 18, 2002
Marshall Wythe School of Law, Room 120
College of William and Mary
Williamsburg, Virginia

I. Call to order and welcome

II. Approval of minutes from the September 15, 2001 meeting

III. Financial Report & Approval of Proposed Budget for 2002-2003

IV. CLE Seminars & Workshop Report

Steve Romine & Lee Hickok - Annual Seminar & Summer Workshop
Larry McElwain & Lee Hickok - Advanced Seminar

V. Reports on estates and trusts legislation Doug Dewing & Jim Cox

VI. Subcommittee Reports

A. Bankruptcy: Stephen B. Wood
B. Current Developments and Legislation: Lucia Anna Trigiani
C. Environmental: Jean D. Mumm
D. Ethics: Susan M. Pesner
E. First Day in Practice: Edward R. Waugaman
F. Housing: Richard B. Chess
G. Information and Technology: Douglass W. Dewing
H. Land Use: Steven W. Blaine
I. Membership: Randy C. Howard
J. Newsletter - the Fee Simple: Lynda L. Butler
K. Small Firm and Sole Practitioner: Allen C. Tanner
L. Title Insurance: Edward R. Waugaman
M. VBA Forms: Joseph W. Richmond, Jr.

VII. Liaison Reports

Bar Counsel - Ray W. King
Old Dominion Bar Association - Manus E. Holms

VIII. Old Business

IX. New Business

X. Adjourn