ALI-ABA Topical Courses Bulk Sales & Purchases of Distressed Condominium Units American College of Real Estate Lawyers (ACREL) January 31, 2012 Video Presentation PROGRAM SCHEDULE FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS Page ix 1. Bulk Sales and Purchases of Distressed Condominium Units 1 By Margaret A. Rolando Overview 2 What is Bulk Purchaser Buying? 3 Issues/Characteristics Common to Bulk Sale Transactions Successor Declarant/Developer Liabilities 4 Successor Declarant/Developer Rights 7 Special Considerations 8 Due Diligence 9 Community Association and Owner Concerns and Amending the Community Association Documents Is Termination an Option 14 2. Exhibit A: Checklist for Turnover By Margaret A. Rolando 3. Question and Answer from January 31, 2012-Additional Materials 23 xi xiii 17 vii
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ALI-ABA Topical Courses Bulk Sales & Purchases of Distressed Condominium Units January 31, 2012 Video Presentation Tuesday, January 31, 2012 12:00 noon Bulk Sales & Purchases of Distressed Condominium Units Panel Discussion 1:30 p.m. Adjournment ix
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ALI-ABA Topical Courses Bulk Sales and Purchases of Distressed Condominium Units Presented with the American College of Real Estate Lawyers (ACREL) January 31, 2012 Video Webcast Studio Recorded, October 19, 2011 MODERATOR & SPEAKER Margaret A. Rolando Shutts & Bowen LLP 201 S. Biscayne Blvd., Suite 1500 Miami, Florida 33131 SPEAKERS Robert S. Freedman Carlton Fields, P.A. 4221 W. Boy Scout Blvd., Suite 1000 Tampa, Florida 33607 Michael J. Gelfand Gelfand & Arpe, P.A. Regions Financial Tower 1555 Palm Beach Lakes Blvd., Suite 1220 West Palm Beach, Florida 33401 Carl H. Lisman Lisman, Webster & Leckerling, P.C. 84 Pine St., Floor 5 Burlington, Vermont 05401 xi
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FACULTY BIOGRAPHIES Margaret A. Rolando Shutts & Bowen, LLP, Miami, Florida Margaret A. ( Peggy ) Rolando has been a partner in Shutts & Bowen s real estate department since 1984. She is a Board Certified Real Estate Attorney and is AV rated. Ms. Rolando is a fellow in the American College of Real Estate Lawyers (ACREL). She serves as Real Property Division Director and as a member of the Executive Committee of the Real Property, Probate and Trust Law Section of The Florida Bar. She is also a long time member of The Florida Bar Committee on Condominiums and Planned Development. Ms. Rolando has a strong background in the acquisition, development, sale, financing and operation of large scale real estate projects. She has extensive experience in the creation and operation of condominiums, planned developments, mixed use projects, resorts, clubs and hotels, including regulatory matters, development, structuring, documentation and management. She counsels developers in evolving flexible legal structures, preparing governing documentation, and filing documentation with the appropriate governmental agencies in connection with the sale of units, including compliance with the Florida Condominium Act and Interstate Land Sales Full Disclosure Act (ILSA). She also offers guidance on operating community associations and making and defending construction defect claims, conducting meetings of members and of directors, and negotiating resolution of disputes between developers and associations. Ms. Rolando s extensive experience in condominiums, master planned communities and mixed use developments provides an exceptional background for advising clients on the sale, purchase and operation of distressed real estate, particularly fractured condominiums. She works with lenders, bulk investors and receivers to craft and implement exit strategies for condominium and non-condominium residential, commercial and mixed use projects. Ms. Rolando is a respected speaker at the national level on development and workouts of condominiums and planned developments. She served on the faculty of the advanced seminar Drafting Documents for Condominiums, Planned Communities and New Urbanism Developments sponsored by the American Law Institute-American Bar Association (ALI-ABA) in 2005-2009. She also participated in two ALI-ABA seminars xiii
in 2009, one on Condos & Planned Communities: Bulk Sale of Units, Homes and Lots in Today s Shifting Economy" and another on ILSA [Interstate Land Sales Full Disclosure Act]: The Sword and Shield of Residential Real Estate Contracts. She spoke on The Condo Glut - A Survival Guide for Condominium Workouts" at the Fall 2007 meeting of ACREL. Ms. Rolando lectured at several seminars on workouts of distressed condominium projects, including web seminars in 2007 and 2008 sponsored by ALI- ABA and a seminar at the ABA Real Property, Trusts and Estates Section Spring 2008 Symposium. She also spoke on Interstate Land Sales Issues in Condominium and Mixed Use Developments at the Spring 2005 Meeting of ACREL and on Condominium Conversions at the ABA Real Property, Trusts and Estates Section Meeting in 2006. Ms. Rolando is a frequent presenter at Florida seminars on acquisition and sale issues and condominium, planned community and mixed use topics. She recently planned and presented a program on The Anatomy of an Owner s Turnover Meeting: Best Practices in Planning and Executing a Successful Transition of Control, sponsored by The Florida Bar. She lectured at the Institute on Condominiums and Cluster Developments, sponsored by University of Miami School of Law in 2008 on Termination: Effects of New Legislation on Condo Regimes Natural vs. Developer-Made Disasters and Fixes, in 2006 on Sleepless Nights: Unit Owner and Management Issues in Hotel Unit Rental and Management Agreements, in 2005 on Termination Issues & Proposed Solutions Facilitating Reconstruction and Redevelopment, in 2004 on Eyes Wide Open: a Checklist for Buyers of Residential Units in a Mixed Use Project, in 2002 on Evolving Issues in Mixed Use Developments and in 2000 on Structuring the Mixed Use Development: Planning and Drafting Perspectives. Her publications include articles on "Making and Encouraging Pre-Sale Disclosures," in The Practical Real Estate Lawyer (July, 2007), Governing Documents for Mixed Use Developments in The Practical Real Estate Lawyer (January, 2006) and How to Enforce Small Value Liens for the Community Association in The Practical Real Estate Lawyer (September, 1999). She co-authored a paper, "The Condo Glut - A Survival Guide for Condominium Workouts," which appeared in The ACREL Papers, Fall 2007. She also co-authored Planning and Structuring of Real Estate Developments Using Condominium and Owners Associations, Chapter 2 of Florida Condominium and Community Association Law published by The Florida Bar (2007). Ms. Rolando was elected to the Board of Trustees of Florida State University in 2010. She is a member of the Board of Visitors of Florida State University College of Law and a member of the Board of Advisors of the Georgia Museum of Art, Athens, Georgia. She also serves on the City of Coral Gables Historic Preservation Board. Recognition Chambers USA: America s Leading Lawyers for Business, selected for inclusion, Real Estate, 2011 Best Lawyers in America, selected for inclusion, Real Estate, 2012 Florida Trend's Florida Elite, selected for inclusion, Real Estate, 2011 xiv
Florida Super Lawyers, selected for inclusion, Real Estate, 2011 Education Florida State University, J.D., with honors, 1978 Florida State University, M.A., 1974 Spring Hill College, B.A., magna cum laude, 1972 Bar Admissions The Florida Bar Affiliations American College of Real Estate Lawyers: Board of Governors (2006-2009); Fellow (2000 to present); Committees: Vice Chair of Common Interest Ownership Committee and Vice Chair of Program Committee Real Property, Probate & Trust Law Section of The Florida Bar: Real Property Division Director (2010 to present), Member of Executive Committee (2006 to present), Member of Executive Council (1993 to present), and Member of Committee on Condominiums and Planned Development (1980 to present) City of Coral Gables Historic Preservation Board (2008 to present) Board of Trustees, Florida State University (2010 to present) Board of Visitors, Florida State University College of Law (1994 to present) Board of Trustees, Spring Hill College (2000 to 2009) Board of Advisors, Georgia Museum of Art (1992 to present) Robert S. Freedman Carlton Fields, P.A., Tampa, Florida Practice Experience Rob Freedman is a member of the firm s Real Estate & Finance Practice Group, and chairs the Community, Condominium and Resort Development Group. He primarily practices in the areas of condominium, subdivision and timeshare development, master xv
planned and mixed-use communities and commercial development, having provided legal counsel to numerous developers throughout Florida and the country. Mr. Freedman has extensive experience in the design and operation of master planned and resort communities, obtaining regulatory approvals for the sale and marketing of projects, working on property management arrangements, preparing the various documents and instruments of record needed to ensure the proper creation of a community, preparing documentation pertaining to various types of mixed-use projects and resorts. He advises clients on all matters that might arise prior to completing a community following its creation. Mr. Freedman also handles general real estate transactions. In addition, he has also been involved in numerous condominium and development workouts, representing lenders and successor developers in a variety of manners, ranging from transactional issues, successor developer regulatory filings, and operational issues involving condominium and community associations. Rob Freedman has published several articles and chapters in treatises on issues pertaining to community development, and he is a frequent speaker on various community development topics at meetings and continuing legal education programs of The Florida Bar, the American Bar Association ( ABA ), the American Resort Development Association ( ARDA ), the University of Miami Institute on Condominiums and Cluster Developments, the American College of Real Estate Lawyers, and other continuing legal education programs. Mr. Freedman also serves as co-chair of the Condominium and Planned Development Committee of The Florida Bar s Real Property, Probate and Trust Law Section, and serves as a member of the Section s Executive Council. Professional and Civic Activities The Florida Bar, Real Property, Probate and Trust Law Section Vice-Chair, Legislative Review Committee (2011-present) Chair, Condominium and Planned Development Committee (2007-2011) Vice-Chair, Condominium and Planned Development Committee (2002-2007) Member, Executive Council (2002-present) American Bar Association, Real Property, Trust and Estate Law Section Chair, Hospitality, Timesharing and Common Interest Development Group (2010- present) Vice-Chair, Hospitality, Timesharing and Common Interest Development Group (2008-2010) Chair, Timesharing and Interval Uses Committee (1998-2005) Chair, Common Interest Ownership Development Committee (2005-2008) CLE Program Standing Committee (2005-present) Publications Standing Committee (2005-2006) Technology Standing Committee (2006-present) Committee On Groups and Substantive Standing Committee (2009-present) American College of Real Estate Lawyers Fellow Chair of the Programs Committee (2010-present) xvi
American Resort Development Association State Legislative Committee Suncoast Chapter of the Community Associations Institute Member, Clearwater Regional Chamber of Commerce Hillsborough County Bar Association The Downtown Corps of Tampa, Trustee (1992-1996) Professional Recognition AV Rated by Martindale-Hubbell Selected for inclusion in Florida Trend s Florida Legal Elite (2005-2007, 2009, and 2011) Listed in Chambers USA Guide to America's Leading Business Lawyers (Real Estate) 2006-2011 editions Selected for inclusion in Florida Super Lawyers (2007-2011) Listed in The Best Lawyers in America 2008-2012 editions (Real Estate Law) Selected for International Who's Who Legal of Real Estate Attorneys (2010-2011) Listed in The Legal 500 (Real Estate Transactions and Finance) BAR ADMISSIONS Florida COURT ADMISSIONS Florida State Courts Education Stetson University College of Law (J.D., 1990) Duke University (A.B., 1987) Michael J. Gelfand Gelfand & Arpe, P.A., West Palm Beach, Florida Bar Memberships: The Florida Bar Southern District of Florida Bar (Qualified in Trial and Bankruptcy Courts) xvii
Middle District of Florida Bar United States Eleventh Circuit Bar American Bar Association Palm Beach County Bar Association Ratings: Martindale - Hubbell "AV". American College of Real Estate Lawyers WorldClass Academy (Florida Chamber Foundation) College of Community Association Lawyers Certifications: Florida Bar Board Certified Real Estate Lawyer. Arbitrator (pursuant to Supreme Court of Florida approved program). Mediator (Supreme Court Certified for County and Circuit Courts). Legal Work Experience: December 2006 Present June 1991-Present March 1989-June 1991 January 1984-March 1989 May 1982-Dec. 1983 Legal Writings: Co-Owner ARC MEDIATION, INC. Senior Shareholder GELFAND & ARPE, P.A. Supervisor: Real Estate Litigation ST. JOHN & KING 500 Australian Avenue South, Suite 600 West Palm Beach, Florida 33401 Senior Associate BECKER, POLIAKOFF & STREITFELD, P.A. 3111 Stirling Road Hollywood, Florida 33312-6525 [Broward County and West Palm Beach offices] Shareholder ABRAMSON, ANSEL & GELFAND, P.A. 634 West Flagler Street Miami, Florida 33130 "The Plaza East Trilogy: Not a Nursery Rhyme, But Scary Warfare," 82 Fla. Bar Journal 4 (April 2008). "Supreme Court on Trust Account Liability," Advisor (Florida Lawyers Mutual Ins. Co., 2nd Quarter 2008). xviii
"Alternative Dispute Resolution," Florida Condominium and Condominium Association Law (The Florida Bar, 2007). "Condominium and Homeowners' Association Liens, "Florida Condominium and Condominium Association Law (The Florida Bar, 2007). "Community Association Law Update," Actionline (The Florida Bar Real Property, Probate and Trust Law Section, Fall 2007). "Condominium and Homeowners Association Liens", Florida Real Property Litigation (The Florida Bar, 4th Ed. 2005) "Community Association Law: Mutating Entities?" (The Florida Bar Real Property, Probate and Trust Section, Fall 2004) "Alternative Dispute Resolution", Florida Condominium Law and Practice (The Florida Bar, 3 rd Ed. 1996) "Out of the Woodshed: Woodside Village v. Jahren" Actionline (The Florida Bar Real Property, Probate and Trust Section, Spring 2002) "Condominium and Homeowner Association Liens", Florida Real Property Litigation (The Florida Bar, 3 rd Ed., 2001) "Condominium Association Arbitrations: Quick and Inexpensive Resolutions" Actionline (The Florida Bar Real Property, Probate and Trust Section, Summer/Fall 2002) "Condominium and Homeowner Association Liens", Florida Real Property Litigation (The Florida Bar, 2002) "Court Dismisses Qui Tam Documentary Stamp Tax Litigation Against Foreclosure Sale Purchasers," Actionline (The Florida Bar Real Property, Probate and Trust Section, February/May 2001) "Community Association Law: Florida Case Law Update Selected Cases", Actionline (The Florida Bar Real Property, Probate and Trust Section, June/September 2000) "Florida Community Association 2000 Legislative Update", Actionline (The Florida Bar Real Property, Probate and Trust Section, June/September 2000) Legal Education: University of Florida College of Law, Gainesville, Florida. Degree: Juris Doctor, May 1982. Activities and Honors: Order of Barristers; Moot Court Team; First Place award for the 1982 ABA/LSD Regional Moot Court competition, selected to represent the Moot Court Team at the ABA/LSD National Competition; Dean's Honor List (four of seven grading periods); Appellate Advocacy, Honors, Instructor and member of Board of Editors; Governmental Research Council, Director; John Marshall Bar Association, Representative; Academic Incentives Committee; New Student Advisor; Phi Delta Phi Fraternity; Law League Softball. xix
Carl H. Lisman, Burlington, Vermont Lisman, Webster & Leckerling, P.C. Carl H. Lisman, a graduate of Harvard Law School, devotes approximately half of his time to litigation and dispute resolution, with an emphasis on business and real estate matters, and the remainder of his time in business transactions and finance. He has been continuously listed in the Best Lawyers in America for more than 20 years and is also listed in Chambers USA, Superlawyers and The International Who's Who of Business Lawyers. His clients include business purchasers, sellers, managers and operators as well as local, regional, national and international lenders; real estate developers, construction contractors, community associations, construction and permanent lenders, mortgage brokers; and property managers. His practice encompasses the entirety of the State, and he is a frequent consultant to lawyers and serves as an expert witness. Mr. Lisman served as an Adjunct Professor at Vermont Law School for 16 years, teaching third-year students. He has lectured extensively on commercial law and the Uniform Commercial Code, corporate governance issues, resort and real estate issues, common interest ownership (including condominium) law and other topics. He is planning chair for the ALI-ABA Consortium on Continuing Legal Education and a member of the faculty on Drafting Documents for Condominiums, Planned Communities and New Urbanism Projects, and a member of the faculty of the Resort Real Estate Program. Mr. Lisman has been a Commissioner on Uniform State Laws since 1976 and is the chair of the Vermont delegation. He has served as Treasurer and a member of the Scope and Program Committee of the National Conference of Commissioners on Uniform State Laws. As a Uniform Law Commissioner, he has been a member of a number of Committees responsible for the drafting of Uniform Laws on many topics, including the Uniform Common Interest Committees responsible for the drafting of Uniform Laws on many topics, including the Uniform Common Interest Ownership Act, the Uniform Condominium Act, the Uniform Planned Community Act, the Model Real Estate Cooperative Act, the Revised Anatomical Gift Act, and the Securities Act. He recently chaired the Committee to revise the Uniform Common Interest Ownership Act, and was the chair of the Committees for the Uniform Nonjudicial Foreclosure Act and the Uniform Unincorporated Nonprofit Associations Act. xx
Mr. Lisman is a Fellow of the American College of Real Estate Lawyers in 1983 and has served a three-year term on the College's Board of Governors. He is a former chair of the College Committee on Common Interest Ownership. Mr. Lisman recently stepped down as chair of the Joint Editorial Board for Real Property Acts, sponsored by the National Conference of Commissioners on Uniform State Laws, the American Bar Association Real Property Sections and American College of Real Estate Lawyers; he continues to serve as a member of the JEB. Mr. Lisman served three terms as Chair of the Board of Trustees of the University of Vermont. Following graduation from law school, Mr. Lisman was clerk for Honorable Sterry R. Waterman, United States Circuit Judge for the Second Circuit. He then was an associate with a major Wall Street firm before returning to Vermont. He has been an active member of the Vermont Bar Association, serving as a member of its Board of Managers. His seminal article, A Ski Injury Liability, 43 Colorado Law Review 307 (1972) is a frequent reference for practitioners and judges. His article on anatomical gifts was published in Pediatric Brain Death and Organ/Tissue Retrieval (1989). An article on representing timeshare purchasers has been published by ALI-ABA. Mr. Lisman was a member of the Judicial Board of the State of Vermont from 1978 to 1986, serving as Chairman from 1983-1986. He has served as chairman on a number of civic organizations, including Chittenden County (Vermont) Chapter of the American Red Cross, the Baird of civic organizations, including Chittenden County (Vermont) Chapter of the American Red Cross, the Baird Center for Children and Families, Inc., and the Vermont Foundation for Children and Families. If you have any questions regarding Carl's areas of practice, please contact him at (802) 864-5756 or by email. xxi
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