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Section 365(h) of the Defalcation Code provides ample aegis to a addressee in the accident of a defalcation filing by its landlord.  Admitting bounce of its lease, the addressee can accept to absorb its rights, including the appropriate to possession, for the antithesis of the appellation of the lease, including any face-lifting or addendum period.[1]  This is black-letter defalcation law absorption a complete activity judgment:  it would be annihilative to business (not to acknowledgment an alone or family) if a freeholder could alter a tenant’s control whenever bread-and-butter affairs fabricated a defalcation filing all-important or desirable. 

Section 363(f) of the Defalcation Code permits the auction of a debtor’s assets “free and clear” of any absorption in those assets if one of bristles factors are satisfied.[2]  The adeptness to band assets of liens, claims and added interests enhances their amount because purchasers would pay far beneath for assets that abide accountable to the claims of a debtor’s creditors.

But what happens back these two sections are active by the aforementioned transaction?  The auction of absolute acreage by a freeholder “free and clear” of a tenant’s leasehold absorption would abolish the tenant’s appropriate to control in credible contravention of Area 365(h).  But, Area 363(f) brooks no barring for a leasehold interest:  it acutely provides for the auction of assets chargeless and bright of “any interest” in the property.    

Majority Access – Battle Charge be Bound In Favor of 365(h)



Most courts to accede this affair accept begin that Area 365 charge abound over Area 363 because basal rules of architecture authority that “the specific prevails over the general.”[3] Courts in the majority accept additionally begin that acceptance landlords to avoid the aegis afforded to tenants by Area 365(h) would be at allowance with Congressional intent.[4]  And, if the battle amid the two sections were bound in favor of Area 363(f), again “the appliance of Area 365(h)(1)(A)(ii) as it relates to non-debtor lessees would be nugatory.”[5]

Minority Approach

A boyhood of courts, however, accept assured that the appliance of Area 365(h) is bound to charter rejection, not a auction of the debtor’s property.  As one cloister has explained, “Section 365(h) applies back a debtor-lessor charcoal in control of its acreage and rejects a lease, not back the debtor-lessor sells acreage accountable to an absorption (such as a lease) chargeless and bright of that absorption pursuant to Area 363. Thus, back the debtor-lessor sells acreage accountable to a charter chargeless and bright of that charter pursuant to Area 363(f), the Cloister will not administer Area 365(h).”[6]  The Seventh Circuit Cloister of Appeals adopted essentially this aforementioned appearance a few years later, captivation that “the agreement of area 365(h) do not abandon those of area 363(f)” because:  (1) “the accustomed accoutrement themselves do not advance that one supersedes or banned the other,” (2) the apparent accent of area 365(h)(1)(A) suggests that it has a bound scope,” and (3) “section 363 itself provides for [adequate protection] to assure the rights of parties whose interests may be abnormally afflicted by the auction of acreage property.”[7]

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In 2014, a adjudicator in the Southern District of New York additionally beneath to accept the majority view.[8]   Dishi & Sons v. Bay Condos, LLC anxious a appeal from the addressee of a debtor to abide in control of a busy abode assemblage admitting the “free and clear” auction of the assemblage to a client pursuant to Area 363(f).  Afterwards evaluating the majority and boyhood positions, the Dishi cloister began by acquainted its annoyance with an aftereffect that would about-face absolutely on the absolute timing of bounce and sale: 

[In the appearance of some courts,] if a trustee absolutely rejects a charter by the time of the sale, he triggers the protections for lessees set alternating in § 365(h), but if there is no appropriate rejection, § 363(f) permits a chargeless and bright auction because § 365(h) is irrelevant.[9] [. . .] This account may accommodate the outcomes in the case law, but it does not abode the basal analytic arguments. The majority can still altercate that § 363(f) will be acclimated to attenuate the protections of § 365(h), and the boyhood can still advance that the sections care to be apprehend accordingly (at atomic back possible).[10]

Rejecting the majority view, the Cloister assured that there is no battle amid sections 365(h) and 363(f):

The above does not admission the aborigine appropriate rights; it protects the lessee’s absolute accessory rights in the accident that the trustee contest its bounce power. The latter, in turn, authorizes the trustee to advertise acreage chargeless and bright of any interest, including the lessee’s accessory rights, but alone if one of its bristles area permits concealment of such rights. [. . . ] §§ 363(f) and 365(h) should be apprehend accordingly as acclamation audible issues. Whether there is a bounce triggering § 365(h) or not, the aborigine may absorb its accessory rights beneath the lease, which charge be admired in any consecutive activity by the trustee, including a chargeless and bright sale. Here, because the [lease] was alone in a appropriate manner, [the tenant] was advantaged to absorb its accessory rights beneath the charter pursuant to § 365(h). That does not mean, however, that such rights are unavoidable. Instead, the Cloister charge appraise whether there is any base for a auction chargeless and bright of [the tenant’s] rights beneath § 363(f).”[11]

The appulse of the Dishi court’s assurance that acreage can be awash chargeless and bright of a tenant’s leasehold interest, however, was choleric decidedly by the cessation that followed.  Afterwards evaluating the bristles area for sales of acreage chargeless and bright beneath Area 363(f), the Cloister begin that none of them accustomed a auction chargeless and bright of the tenant’s leasehold absorption in this case.[12] And, alike if the auction could accept been accustomed in accordance with one of those bristles subsections, the District Cloister assured that the Defalcation Cloister did not corruption its acumen in captivation that the able aegis appropriate by Area 363(e) of the Defalcation Code could be accomplished alone through the tenant’s connected control of the busy premises.[13]

A few years afterwards Dishi, the Ninth Circuit additionally alone the majority access and instead followed Qualitech and the added “minority” decisions.[14]  As an antecedent matter, the Cloister assured that it could “easily” apprehend the two sections of the Defalcation Code in a address that gives aftereffect to anniversary one.[15]

Although amorphous in the Code, a ‘rejection’ is universally accepted as an acknowledging acknowledgment by the trustee that the acreage will not booty on the obligations of a charter or arrangement fabricated by the debtor. A auction of acreage chargeless and bright of a charter may be an able bounce of the charter in some accustomed sense, but it is not the aforementioned affair as the ‘rejection’ advised by area 365.  In sum, area 363 governs the auction of acreage property, while area 365 governs the academic bounce of a lease. Where there is a sale, but no bounce (or a rejection, but no sale), there is no conflict.[16]

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But, alert of its accommodation actuality construed as alike to “an able abolition of Area 365(h),”[17] and acquainted that its absolute captivation would be of little use in a bearings (like the one the cloister faced in Dishi) in which there was both a academic bounce of the charter and a proposed auction of property, the Spanish Peaks Cloister offered the afterward added guidance.  First, as in Dishi, the Cloister acclaimed that the claim for able aegis of an absorption to be concluded by a Area 363(f) auction constitutes a “powerful analysis on abeyant abuses of free-and-clear sales.”[18]  Second, additionally as in Dishi, the Ninth Circuit empiric that a auction chargeless and bright of the tenant’s leasehold absorption could alone be consummated aloft achievement of one of the bristles accoutrement of Area 363(f).[19]

Accordingly, alike in the boyhood of cases in which courts arise to accessory a tenant’s rights beneath Area 365(h) to the accoutrement of Area 363(f), the addressee is not after recourse.  To the contrary, a debtor gluttonous to advertise acreage chargeless and bright of a tenant’s leasehold absorption charge amuse one of the bristles bases for approval of such sales set alternating in Sections 363(f)(1)-(5).  And, if the addressee requests it, the Cloister can action the auction on “adequate protection” of the leasehold interest, which may booty the anatomy of connected control for the continuance of the charter term.  Given these protections, the coaction amid Sections 363(f) and 365(h) may be of added absorption to academics and practitioners than to tenants, who arise to adore ample aegis of their rights beneath both the majority and boyhood view. 

[1] 11 U.S.C. § 365(h)(1)(A)(ii). 

[2] 11 U.S.C. § 363(f)(1)-(5). 

[3] In re Churchill Props. III, Ltd. Pshp., 197 B.R. 283, 288 (Bankr. N.D. Ill. 1996). 

[4] See, e.g., In re Taylor, 198 B.R. 142, 165 (Bankr. D.S.C. 1996) and In re LHD Realty Corp., 20 B.R. 717, 719 (Bankr. S.D. Ind. 1982). 

[5] Churchill, 197 B.R. at 288.   Cf.  In re Revel AC, Inc., a contempo accommodation of the Third Circuit Cloister of Appeals appears to be in accordance with the majority view.  2018 U.S. App. LEXIS 34028 (3d Cir. Nov. 30, 2018) (tenant acceptable to abate its hire obligations by advantage amounts applicative beneath the charter by advantage of its acclamation beneath Area 365(h) admitting new landlord’s accretion of the acreage “free and clear” beneath Area 363(f)).

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[6] In re Downtown Ath. Club of N.Y. City, 2000 U.S. Dist. LEXIS 7917, *12-13 (S.D.N.Y. 2000). 

[7] In re Qualitech Steel Corp. & Qualitech Steel Holdings Corp., 327 F.3d 537 (7th Cir. 2003). 

[8] Dishi & Sons v. Bay Condos, LLC, 510 B.R. 696 (S.D.N.Y. 2014) (“Dishi”).

[9] Dishi at 704 (citing In re Zota Petroleums, LLC, 482 B.R. 154, 163 (Bankr. E.D. Va. 2012)). 

[11] Id. at 707, 708 (emphasis added).

[14] In re Spanish Peaks Holdings II, LLC, 872 F.3d 892 (9th Cir. 2017) (“Spanish Peaks”).   

[17] Id. (citing Dishi, 510 B.R. at 704).

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[19]  Unlike in Dishi, however, in Spanish Peaks there does not arise to accept been any altercation “that at atomic one accouterment of § 363(f) was satisfied.”  Id.

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