Can you terminate a commercial lease by filing bankruptcy?

Answer 1

Yes and no. A TENANT can terminate a commercial lease by filing bankruptcy. Under Section 365(b) of the Bankruptcy Code, a tenant has 120 days from filing a bankruptcy petition to either assume or reject the lease. This can be extended once by 90 days, with court permission. Unless the tenant files a timely motion with the bankruptcy Court to assume the lease (and cures past defaults and provides "adequate assurances" of future performance), the lease will automatically be deemed rejected. If the lease is at an above-market rental, or otherwise disadvantageous to the tenant, the tenant should surrender possession and bring an earlier motion to reject the lease. If the lease is at a below market rental, the tenant should consider assuming the lease and assigning it through bankruptcy. Under Bankruptcy Code Section 502(B)(6), the tenant will still be liable to the landlord for damages for early termination of the lease, but these damages are subject to a "cap" equal to 15% of the value of the unexpired lease term - not to exceed three (3) years rent. The landlord wil have an unsecured creditor's claim for these damages, and will share equally with all other unsecured creditors in the bankruptcy. If a tenant continues to occupy the premises after the bankruptcy filing, the landlord will have what is known as a priority "administrative" claim for the rental value during that period, and will be given preference over other general unsecured creditors to recover those amounts. A tenant's bankruptcy will not terminate liability under any personal guarantees given in connection wit the lease, unless the guarantor also files for bankruptcy. Depending on how the lease and the guaranty are structured, the guarantor may not be able to claim the benefit of the "cap" on damages. A LANDLORD may not unilaterally terminate a commercial lease by filing bankruptcy. Under Section 365(h) of the Bankruptcy Code, a tenant whose landlord has filed bankruptcy has the option to either treat the lease as terminated and vacate the space or to remain in possession (and continue paying the rent) for the balance of the lease term (including any extension options, if timely exercised by the tenant). There are many subtle nuances and exceptions to these basic rules and a party to a commercial lease should seek the advice of competent counsel before taking action to terminate that lease.