Financial distress persists in the commercial real estate market, raising the prospects that property owners and landlords could seek relief under chapter 11 of the Bankruptcy Code. The Bankruptcy Code contains numerous...more
When a tenant under an unexpired lease of nonresidential real property files a case under chapter 11 of the Bankruptcy Code, both tenant and landlord acquire rights and obligations that may contravene the terms of the lease...more
This alert highlights a recent decision by Judge Michael E. Wiles in the Bankruptcy Court for the Southern District of New York (“SDNY”), which held that lease rejection damages should be calculated using the “time approach”...more
Section 365(h) of the Bankruptcy Code provides special protection for tenants if a trustee or chapter 11 debtor-in-possession ("DIP") rejects an unexpired lease under which the debtor was the lessor by giving the tenant the...more
The $2.3 trillion Consolidated Appropriations Act of 2021 brought relief to many people and businesses struggling due to the COVID-19 pandemic when the act became effective on December 27, 2020. The relief provided under the...more
The much-ballyhooed COVID relief bill passed by Congress at the end of last year, in addition to providing for $600 checks to millions of people, includes several COVID-related amendments to the U.S. Bankruptcy Code. Some of...more
President Trump signed the Consolidated Appropriations Act, 2021 yesterday, December 27, 2020. Although not widely reported, the legislation makes several amendments to the Bankruptcy Code based upon the severe financial...more
Consider the following - A Chapter 11 bankruptcy case is filed. The landlord now has a tenant that is in bankruptcy. This is a disaster for the commercial landlord, right? Not necessarily. It actually may be of benefit to...more
As the COVID-19 pandemic continues to wreak havoc with the nation’s economy, we have started to see bankruptcy filings by well-known companies such as GNC, J. Crew, Neiman Marcus, Modell’s, 24 Hour Fitness, Gold’s Gym, and...more
This practice note discusses the risks to the landlord when a tenant files for bankruptcy and the steps a landlord can take to protect itself following a tenant’s bankruptcy filing. Once a tenant enters a Chapter 11...more
A recent decision from the United States District Court for the Southern District of New York (the District Court) in the bankruptcy cases of Sears Holdings Corp. may loom large in a day and age when shopping mall operators...more
Suppose you own farmland or retail commercial space and you lease your property. What happens to your lease if the lessee files bankruptcy? And what must be done if your lessee wants to continue to honor your lease...more
Section 365(h) of the Bankruptcy Code provides considerable protection to a tenant in the event of a bankruptcy filing by its landlord. Despite rejection of its lease, the tenant can elect to retain its rights, including the...more
Recently, in IDEA Boardwalk, LLC v. Revel Entertainment Group, LLC; Polo North Country Club, Inc. (In re Revel AC Inc.), No. 17-3607 (3d Cir. Nov. 30, 2018), the Third Circuit held that Section 365(h) of the Bankruptcy Code...more
In the typical day-to-day experience in bankruptcy proceedings, the debtor’s ability to assume or reject executory contracts and leases under Section 365 of the Bankruptcy Code is seen from the sometimes-unfortunate...more
The ability of a trustee or chapter 11 debtor-in-possession ("DIP") to sell bankruptcy estate assets "free and clear" of competing interests in the property has long been recognized as one of the most important advantages of...more
The recent Spanish Peaks decision from the Ninth Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) deepens the split in case law on the ability to strip off leases in a...more
Commercial landlords have unique protections in bankruptcy, but can lose these rights if they do not assert them. When a commercial tenant files bankruptcy under Chapter 11, the landlord must carefully monitor filings and...more
In re Simbaki, Ltd., 520 B.R. 241 (Bankr. S.D. Tex. 2014) – A chapter 11 debtor sought to assume a restaurant lease. The landlord objected, arguing among other things that the lease was not timely assumed and so was...more
Your tenant files for bankruptcy-what’s your move? Debtors who are lessees under real property leases have certain rights regarding their lease under § 365 of the Bankruptcy Code. Essentially, the debtor has two options: 1)...more
As many commercial landlords can attest based on experience, a tenant that files bankruptcy receives the benefit of rights and protections under the Bankruptcy Code that it would not have outside of bankruptcy. Among other...more