With the recent downturn in the market, a number of commercial tenants are experiencing financial difficulties. In turn, this can lead to problems for commercial landlords, most importantly, the tenant staying current with lease payments. This may then lead to the tenant filing for bankruptcy protection. If your commercial tenant files for bankruptcy, it is wise to have a strategy in place to not only minimize the time of non-payment, but also maximize the ability to receive rents and damages allowed under the Bankruptcy Code.
Following are four (4) questions for commercial landlords to review with an attorney whenever a commercial tenant files for bankruptcy protection:
1. Have You Filed a Proof of Claim(s)? As soon as the tenant/debtor files for bankruptcy protection, commercial landlords should ensure their rights to payment(s) by filing appropriate proofs of claim. It is advisable to review with your attorney the current account history and lease to ensure all fees are being accounted. Landlords may be able to file upto three (3) different types of claims:
a. Pre-petition Claim. Section 502 of the Bankruptcy Code provides that creditors are permitted to file a proof of claim for all pre-petition charges and assessments owed. If a tenant files for bankruptcy, the landlord is permitted to file a proof of claim for all fees and charges incurred prior to the filing date;
b. Post-Petition Administrative Claim. Section 503(b)(1) of the Bankruptcy Code provides a creditor a priority claim for all “actual, necessary costs and expenses of preserving the estate”. If the tenant remains in the premises after the bankruptcy and does not reject the lease, the commercial landlord may be allowed payment ahead of other creditors for amounts incurred during this period; and
c. Post-Rejection Damage Claim. Section 503(b)(7) of the Bankruptcy Code provides a commercial landlord the right to be paid for “post bankruptcy rejection” damages. If the tenant rejects the lease, certain damages incurred and the remainder of the lease may be permitted priority before payment of certain claims.
2. Is the Debtor/Tenant Assuming or Rejecting the Lease? Landlords should inquire whether the debtor/tenant intends to assume or reject the lease. Bankruptcy Code Section 365 provides that tenants are permitted to assume a commercial lease, as long as they cure all post-petition defaults. If they reject the lease, then the landlord may be able to proceed with an eviction action to remove the tenant. However, landlords should know that the Bankruptcy Code permits the debtor 120 days to decide whether to assume or reject the lease, with an additional 90 day extension. All told, this can leave the landlord sitting around for more than 7 months without payment. If your not being paid, it may be advisable to have the Bankruptcy Court allow you to proceed with an eviction action.
3. Should you File a Motion for Stay Relief to Proceed with an Eviction? The debtor/tenant may not advise their intent to assume or reject the lease. As noted, during this time, the debtor/tenant can use the premises without paying anything. The landlord is permitted to file a motion for “Relief from the Automatic Stay”. This Motion, if granted, permits the landlord to resume or commence with a state court eviction action.
4. What to Do with Items Left by a Tenant? If the debtor/tenant leaves equipment, inventory or equipment at the premises, can you just throw it away? Does anyone have an interest in the left over items, like the debtor/tenants’ bank? Can you recover storage fees? When a tenant/debtor files for bankruptcy, these left over items may be part of the bankruptcy estate. Gaining proper approval from the Bankruptcy Court, before disposing of the left over “junk” is essential to limiting liability. For instance, the left over property may be secured by a bank, financial institution or creditor. You may want to have a UCC Search conducted to ascertain whether any security interest exists. If security interests are discovered, it is advisable to give notice to those entities, possibly through a motion with the Bankruptcy Court.
These are just a few of the questions a landlord should ask when a debtor files for bankruptcy. By asking these questions at the start of the bankruptcy, landlords can limit the loss or liability, as well ensure their right to payment through the Bankruptcy Code.