A $98 million verdict secured by Boyd, Powers & Williamson has been inducted into the VerdictSearch Texas Verdicts Hall of Fame.

In reaching the December 2017 verdict, a Dallas County jury found that BBVA Compass Bank and one of its executives had committed fraud during loan renewal and modification negotiations with a developer of three luxury subdivisions in northeast Tarrant County following the 2008 financial crisis.

Lead trial attorney Derrick Boyd presented evidence, including email correspondence, showing that the bank executive had been actively working to sell the properties while simultaneously promising developer David Bagwell that the bank was not selling the loans and intended to extend his loan.

A $96.2 million final judgment in the case in 2018 preserved all but one portion of the verdict and added pre- and post-verdict interest.

Read details of the case.

A court recently ordered the seller of a car wash property in New Jersey to fully remediate previously undiscovered environmental contamination at the property in accordance with its contractual obligations, according to a post in the Riker Danzig Environmental Law Blog.

Jaan M. Hause explains in the post that “the seller could have more carefully crafted the language of the rider to limit its remediation obligations. Unfortunately for seller, the language in the rider obligating seller to remediate was extremely broad, and thus exposed seller to additional, costly liabilities that it did not intend to assume.”

Read the article.

The expiration of an oil and gas lease’s primary term does not necessarily release all non-producing lands, writes J. Mark Robinette.

“This can be so even when the lease contains a Pugh Clause. Typically, most leases contain savings provisions that extend the lease beyond the primary term when the lessee ‘continuously prosecutes’ drilling operations,” he explains.

In a post on his website, he provides a sample of this saving provision from the Producer’s 88 lease form.

Read the article.

Every real estate and construction contract contains a list of insurance requirements identifying specific types and amounts of coverage for one or both parties, but too often these requirements are included in a form exhibit that is attached to contracts year after year, project after project, without careful review.

In a new website post, Lyndon Bittle of Carrington Coleman discusses  “traps for the unwary” lurking in construction contract insurance requirements, focusing on the ubiquitous commercial general liability policy.

Many of the traps pop up in connection with making one party an additional insured on the other party’s liability policies, Bittle writes. “One deceptively problematic provision is a requirement that the owner be ‘named an additional insured,’ without further details. That request conveys almost nothing.”

Read the article.

A post on the website of Allen Matkins offers five strategies for real estate buyers to increase their leverage when dealing with a seller who requires a sign-and-go-hard transaction.

Such an agreement means the buyer must commit its deposit upon execution of a purchase agreement, without the opportunity to reclaim such investment if it discovers an undesirable condition after opening escrow, explain the authors, Alain M. R’bibo and Shannon I. Snell.

They discuss strategies that involve early access agreements, seller representations, carving out title and survey from the diligence period, expanding conditions precedent, and closing extension options.

Read the article.

If a contract is extinguished by rescission, it would seem that all of its provisions, including a prevailing party attorney’s fee clause, would be extinguished. According to a California Court of Appeal decision handed down recently, that isn’t necessarily the case, writes Keith Paul Bishop for the Allen Matkins California Corporate & Securities Law blog.

Bishop explains:

“The case involved a suit by a tenant and a guarantor (Paul Orozco) against a landlord for fraud. The tenant won an award of compensatory damages on its fraud claim and Paul Orozco succeeded in rescinding his guaranty of the lease. Although the guaranty included an attorney’s fee clause, the trial court declined to award Orozco his fees. The Court of Appeal disagreed.”

Read the article.

A week after the West Virginia Supreme Court unanimously upheld the property rights of landowners battling one natural gas giant, the same court tossed out a challenge filed by another group of landowners against a different natural gas company, reports Ken Ward Jr. of the Charleston Gazette-Mail.

The article, published on the website of the ABA Journal, is the product of a partnership with the Gazette-Mail, a member of the ProPublica Local Reporting Network.

The court on Monday upheld a lower court ruling that threw out a collection of lawsuits alleging dust, traffic and noise from gas operations were creating a nuisance for nearby landowners.

“In the property rights case last week, the justices set a clear legal standard that natural gas companies can’t trespass on a person’s land, without permission, to tap into gas reserves from neighboring tracts,” writes Ward. “In Monday’s case, the justices didn’t articulate a new legal precedent.”

Read the ABA Journal article.

As the U.S. commercial real estate sector prepares in the downswing of an extended economic expansion, executives and investors continue to be highly optimistic about the market and the overall U.S. economy, according to an annual survey by U.S. law firm Akerman LLP. The tenth annual Akerman U.S. Real Estate Sector Report – completed by more than 200 C-suite and senior executives – shows that developments such as federal tax reform and evolving technology have taken root and spurred growth, even amid mounting uncertainty and the likelihood of a market correction.

Coming off a record-high outlook in the 2018 survey, when 68 percent of respondents expressed more optimism for the market in comparison to the prior year, 70 percent this year say they are more bullish about 2019 market activity than 2018. Nearly half (46 percent) say the continued improvement of the U.S. economy is the primary driver of this increased confidence.

In a release, the firm said the survey also shows sentiments of softening with a market slowdown looming. A third of respondents (33 percent) say interest rate uncertainty is their primary concern, followed by uncertainty in global economic conditions (23 percent) and uncertainty of federal government policy in the U.S. (22 percent). With the prospect of an interest rate reduction by the Federal Reserve, concerns about rising interest rates are abated for the time being and certain subsectors like industrial and multifamily are outperforming in major markets like Chicago, Houston, Los Angeles, Miami, and New York.

“While the U.S. real estate market has remained resilient since the economic downturn, the headwinds we expected coming into 2019 are starting to come to fruition,” said Eric Rapkin, chair of Akerman’s national Real Estate Practice Group. “Nonetheless, capital is still chasing deals, especially in gateway markets, and we’re beginning to see executives capitalize on tax advantages and deferral strategies such as Opportunity Zones.”

Additional trends identified in Akerman’s 2019 survey include:

• Tax Reform and Opportunity Zones Generate Activity: With the commercial real estate sector a key beneficiary of the Tax Cuts and Jobs Act passed in December 2017, it’s no surprise that 46 percent of respondents rank tax reform among the top three trends they expect to have a significant impact on real estate development over the next three years. On the heels of the release of the U.S. Treasury Department’s second round of proposed regulations, developers and investors are expressing more interest in Opportunity Zones – areas designated for federal tax breaks. As further clarity is being brought to the program, nearly a quarter of respondents place Opportunity Zones among the top three areas they believe will fund the most commercial real estate debt and/or equity in 2019.

• Digital Transformation and Disruption: Executives responding to the survey view technological advances as having the most influence on real estate development, with 48 percent selecting it among the top three trends that will have a significant impact over the next three years. Incorporating the latest technology and design attributes has become critical across all sectors of the real estate market, including luring and retaining tenants in office buildings, attracting millennials to residential properties and facilitating the use of automation and robotics for the industrial sector.

• Aging Population Drives New Areas of Growth: The graying of America closely follows technology and tax reform as the trend expected to most impact real estate development, with 45 percent of respondents designating it among their top three choices. As seniors account for more of the population, new types of healthcare facilities are experiencing growth, including microhospitals, ambulatory surgery centers and other medical uses within traditional retail locations.

• Housing Still Dominates: Survey respondents continue to express confidence in multifamily with 67 percent placing it among the top two sectors they expect to be the most active for real estate transactions in 2019, followed by single-family residential (50 percent). These results echo last year’s survey where 63 percent of respondents predicted the multifamily sector would be the first or second most active in 2018. Within multifamily, 2019 respondents rank apartment development as likely to be most active this year, followed by senior living facilities.

• China, Canada and Latin America Lead the Way: Uncertainties abound in an unbalanced global economy – driven by such developments as the trade war with China, ongoing Brexit gridlock and the upcoming U.S. presidential election. Nonetheless, respondents expect cross-border investment across a range of areas. Executives predict China to be the region that will invest most heavily in the U.S. hospitality, industrial, office and retail sectors. However, Canada is expected to contribute most to foreign investment in the predicted hot markets of multifamily and single family residential. Within Latin America, respondents expect the greatest increase in investment in U.S. real estate to come from Mexico (38 percent), followed by Brazil (30 percent).

• Private Equity and Banks Lead Among Funding Vehicles: For the fourth year in a row, real estate executives expect most funding to come from private equity funds and institutional lenders. In reflecting on the top three areas they expect to fund the most commercial real estate debt and/or equity in 2019, 53 percent chose private equity and 51 percent selected banks. Additional funding sources selected by respondents include foreign investors (45 percent), insurance companies (28 percent) and real estate investment trusts (24 percent).

Smart contracts are best suited to execute somewhat rudimentary legal tasks, which typically involve transferring funds or imposing financial penalties when certain conditions are satisfied, explain Maria Alicia “Fernandez and Guillermo Gonzalez Frankenberger of Hogan Lovells.

“However, as the applications of blockchain and the assets controlled by it expand, the use of smart contracts is likely to become more complex and legally sophisticated,” they write in the firm’s Real Estate Horizons.

“Notwithstanding its promising applications,There are concerns that need to be addressed before the wide- spread application of smart contracts,” the authors explain.

Read the article.

Stephen Cooney of Gray Reed, in a post on the firm’s website, provides some analysis of the state of groundwater law in Texas and discusses some of the effects of a Texas Supreme Court case that should now be a concern to land purchasers in every transaction.

In Coyote Lake Ranch, LLC v. City of Lubbock, the court found  that a severed groundwater right would be worthless if the groundwater owner could not enter upon the land in order to extract the groundwater

Under the law now, a petroleum development company can set up a pad, build roads, lay pipeline and start drilling for water, even though the holder of the mineral rights waived the right to come on the property to drill for oil and gas.

Read the article.

Many leases contain renewal language, allowing the lessee to renew the lease term after the original lease term expires, points out James O. Birr III of Jimerson Birr in Florida.

“These provisions sometimes contain notice requirements and fulfillment of certain conditions precedent. In some instances, the leases may automatically renew. In any case, the terms of the lease renewal require certainty and specificity,” he advises.

He discusses a recent Florida appellate ruling that points out that parties must be specific in negotiating renewal terms and what the rent to be paid during the renewal period will be.

Read the article.

Thirteen Texas attorneys from global law firm Greenberg Traurig, LLP have been recognized in the 2019 Chambers USA Guide, one of the most prestigious listings for business lawyers. In addition, Chambers recognized three practice areas in Texas: Health Care, Intellectual Property, and Real Estate.

Kent Newsome, chair of the Texas Real Estate Practice and co-managing shareholder of the Houston office, received a Band 1 ranking in Real Estate. Thomas J. Bond, the firm’s Austin managing shareholder and co-chair of its Government Law & Policy and Insurance Regulatory & Transactions Practices, earned a Band 1 ranking in Insurance.

Read the complete list of GT lawyers honored by Chambers USA.

A Delaware court refused to reform a contract with clear language, finding the argument of a scrivener’s error unconvincing, write Scott E. Waxman and Douglas A. Logan for K&L Gates.

“While the Court noted that it found all of the parties’ testimony believable, the Court did not find clear and convincing evidence that a mistake was made in drafting the contract in question,” the authors explain.

They list the three elements that a party seeking reformation must clearly and convincingly prove.

Read the article.

The Cook County Record is reporting that a county judge has ordered more than $1 million in sanctions and penalties against a lawyer and his client in connection with a litany of legal actions against a condo association.

The lawyer is John Xydakis, a Chicago real estate lawyer. He represented Marshall Spiegel, who sued the 1618 Sheridan Road Condominium Association. On Feb. 8, 2018, Judge Margaret Ann Brennan denied Spiegel’s request to file a 99-count, 223-page fifth amended complaint and later that year denied his motion to reconsider that ruling, writes Scott Holland.

The judge’s order noted “Xydakis filed claims against nearly every resident” of the condo and “without any factual basis … alleged serious offenses, including theft, slander, harassment and stalking.” She said the claims they brought “have no basis in law or fact.”

Read the Cook County Record article.

Barnes & Thornburg has added William Lewis as a partner in the firm’s Real Estate Department in Chicago. Lewis, who was previously at Reed Smith LLP, is the tenth partner to join the firm’s Chicago office in just over a year.

In a release, the firm said Lewis advises privately held businesses and individuals on legal and business issues across the real estate spectrum, but with a particular focus on office, industrial and retail: leasing; acquisition and disposition; and sale/leasebacks. He also regularly acts as project manager, facilitator, counselor, sounding board, problem solver, and issue spotter for his clients who require business-based legal skill, often involving other firm resources whenever appropriate.

Lewis has handled office, industrial, and leasing matters throughout the United States, Canada, and Mexico, and in Asia, Australia and Europe, the firm said.

Over the course of his career, Lewis has acquired and disposed of more than $700 million in commercial properties, many of which contained significant environmental issues. He also regularly counsels clients on the sale and leaseback of their real estate holdings, often focusing on “bet-the-company” transactions, according to the release.

Lewis provides pro bono services to several nonprofit organizations, which have included Habitat for Humanity, Housing Opportunities and Maintenance for the Elderly (H.O.M.E.) and UCP Seguin of Greater Chicago (f/k/a United Cerebral Palsy of Greater Chicago).

Lewis earned his J.D. from the Gonzaga University School of Law, and his B.S. from Marquette University.

Ira Meislik of Meislik & Meislik, writing in the firm’s Ruminations real estate law blog, examines the use of subrogation clauses in real estate leases in relation to insurance policies.

He states that the term “waiver of subrogation” is a misnomer when it comes to a lease provision.

“It is the insurance policy where the carrier waives its subrogation right. It isn’t the lease that waives an insurance company’s subrogation right. What the lease needs to do is waive claims. Secondarily, but importantly, a lease needs to require each party to have insurance policies that aren’t invalidated by such a waiver of claims,” he explains.

Read the article.

The Energy & the Law blog of Gray Reed & McGraw discusses a case that sums up what is required for an instrument to be a conveyance and what is required for a stipulation to be effective.

Ellison v. Three Rivers Acquisition involves land title issues that arose when a mineral development company discovered an apparent discrepancy in a land swap from almost 100 years ago. The developer asked the owner of a mineral lease on the land in question to sign a letter confirming acceptance of a boundary stipulation designed to resolve the discrepancy.

The article discusses the question of whether the boundary stipulation was a legal conveyance.

Read the article.

The 4th U.S. Circuit Court of Appeals has upheld the “take first, pay later” approach to building the Mountain Valley Pipeline, in which the company condemned private property in the project’s path before paying opposing landowners for their losses, reports The Roanoke Times.

Reporter Laurence Hammack writes that the ruling was a blow to pipeline foes, who have long decried the use of eminent domain to take parts of family farms and rural homeplaces to make way for a 303-mile natural gas pipeline through West Virginia and Virginia.

Landowners did not contest the laws that allowed the pipeline company to obtain forced easements through nearly 300 parcels in Southwest Virginia, but they objected to a lower-court ruling granting immediate possession of the disputed land before deciding how much each property owner should be compensated, Hammack explains.

Read the article.

Politico reports that the Justice Department placed an online job posting for a pair of attorneys to tackle border wall litigation in South Texas — a sign of coming property seizures and other legal controversies that President Donald Trump anticipates if he plows ahead with his signature project.

Politico’s Ted Hesson interviewed Chris Rickerd, the American Civil Liberties Union’s senior policy counsel on border and immigration issues, who said the attorneys likely will deal with eminent domain property seizures and quarrels with landowners over what their land is worth.

The two advertised jobs, based in McAllen and Brownsville, will pay between $53,062 and $138,790, according to a posting to a federal jobs website.

Read the Politico article.

A bill filed in the Texas Senate would require home sellers to disclose if their property is in a flood-prone area or if it has already flooded, according to a post on the website of Androvett Legal Media & Marketing.

The legislation from Houston-area Sen. Joan Huffman is meant to prevent a repeat of some of the flooding damage from Hurricane Harvey, when many people learned too late that their homes were built in flood plains or in reservoir areas designed to catch floodwaters.

Dallas insurance attorney Stacy Thompson of Perry Law P.C. said she believes the measure, if adopted, could lead to better insurance coverage for consumers, but would also affect insurance companies.

“Knowledge is certainly power. However, the implications of this bill reach far beyond home ownership,” she said. “Undoubtedly disclosing this information would affect property values, increase insurance premiums and have a lasting effect on the housing market in the coastal counties of Texas. Moreover, the bill would allow insurance companies to gain a better understanding of the risk they are insuring and hopefully offer a better overall product to customers. That would result in better coverage and a better outcome when natural disasters inevitably strike.”