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Let’s look at how a temporary change to the bankruptcy code protects landlords. The Consolidated Appropriations Act of 2021 (CAA), signed into law on December 27, 2020 provides money for governmental departments, coronavirus stimulus to individuals and businesses, but also made a temporary change to the bankruptcy code. Some of those amendments directly affect the rights of landlords of commercial properties.

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Since the pandemic started, landlords have been working with their commercial tenants by reaching deferral and waiver arrangements for payment of rent in arrears. Landlords are concerned that if their tenants filed a bankruptcy petition, payments made outside the ordinary course of the lease could be recovered by the bankruptcy estate, if the trustee brought a lawsuit to recovery of those payments under Section 547 of the Bankruptcy Code. Sections 547 and 550 provide for the avoidance and recovery of payments made on or within 90 days before the debtor filed for bankruptcy or one year if such transfer was to an insider, known as the preference period.

Under the CAA landlords have temporary protection from preference and claw back litigation. The safe harbor is geared toward encouraging landlords to work with their struggling commercial tenants, reaching agreements on the payment of rent without the fear of having to turn over those payment to a bankruptcy estate. To qualify, the payment arrangement should have been entered into on or after March 13, 2020, and the payment arrangement should not include, fees, penalties, or interest in an amount greater than what the tenant would have if paid on time and in full.

Landlords should also be prepared that if a tenant does file for bankruptcy, Section 365(d)(4) allows additional time for debtors to assume, assign, or reject nonresidential real property leases. Under the CAA, a Chapter 11 debtor has an initial 210 days to make a determination, and a 90-day extension provision with landlord written consent. However, debtors will still be required perform all of their obligations under the lease in a timely manner, unless the court directs otherwise.

Since these amendments will sunset on December 27, 2022 unless extended, it is important to understand the developments in case law and provisions of the change to the bankruptcy code. Our professionals can assist you in navigating the new rules and how they can impact your rent collection actions.

This e-alert is provided by Hyland Levin Shapiro LLP as a general summary of the topics discussed; it does not replace the need to consult with a legal professional and is not intended to be a substitute for competent professional advice, including any advice regarding the effect of the Consolidated Appropriations Act of 2021 on your particular business. If you have any questions about the provisions summarized above, please contact Angela L. Mastrangelo, Esquire at mastrangelo@hylandlevin.com or 856.355.2989.

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Should employers require employees to be vaccinated? The first doses of the Coronavirus vaccines have been shipped across the country and Employers will soon have to decide whether they will require their employees to be vaccinated. Employers choosing to require vaccinations will also have to enact and enforce quality policies and procedures to prevent opposition and avoid potential litigation. However, as with all COVID-19 issues, there are many open questions, few concrete answers, and significant legal concerns when considering mandatory employee vaccinations.

Employers have a difficult task – they must balance their responsibility to maintain a safe and danger-free workplace with the individual rights of employees. This article will provide an outline of the legal framework currently addressing mandatory employee vaccines, what issues employers must consider, and some recommended best practices and guidance employers can rely on to navigate these unprecedented times.

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The Legal Framework for Employers to Require Employees to Be Vaccinated

The first question any employer must ask themselves is whether to make the vaccine mandatory for its employees or to strongly encourage its workers to receive the vaccine on their own. Still another option is for employers to evaluate their workforce and adopt a hybrid method where certain employees, such as those that are customer-facing, travel-based, or unable to implement other preventive measures such as masks or distancing, are required to get the vaccine while the rest of the workforce is just encouraged to get it. While the impact of the virus may make mandatory vaccines appealing, employers need to be prepared to address and, with the help of counsel, minimize the legal pitfalls that come with a mandatory vaccination policy. Those pitfalls begin with the current state of federal law and federal guidance regarding mandatory employee vaccines.

Federal Law & Guidance

Due to the novel nature of the Coronavirus, the current state of federal and state law and guidance is premised on the flu vaccines. While COVID-19 may be the more prevalent vaccine on employers’ minds, the CDC has indicated the critical importance of flu shots this year, making the below analysis applicable to both vaccines.

Employers must keep in mind three distinct federal laws when considering a vaccine policy: OSHA, ADA and Title VII.

OSHA

The U.S. Occupational Safety and Health Administration (“OSHA”) has taken the position that employers can mandate flu vaccines for their employees as well as other vaccinations. However, OSHA’s position also emphasizes that employers must “properly inform” their employees of the benefits of vaccinations. OSHA also provides for certain exceptions to a vaccine mandate where an employee refused to be vaccinated because of a “reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine)…”

ADA

The Americans with Disabilities Act (“ADA”) provides a basis for individuals with medical disabilities that would be triggered by a vaccine policy to request a reasonable accommodation. The Equal Employment Opportunity Commission (“EEOC”) released vaccine-related guidance in March 2020 addressing whether employers covered by the ADA can require its employees to receive flu vaccines. The guidance explains that the ADA can provide employees with an exemption to the vaccination requirement
based on a disability that would prevent the employee from taking the vaccine. For example, some flu vaccines have contained egg products that would prevent someone allergic to eggs from taking that variety of flu vaccine. Where such a disability exists, the employee would be entitled to a reasonable accommodation that includes not receiving the vaccine. That is, unless that accommodation would present an undue hardship to the employer.

The ADA defines “undue hardship” as “significant difficulty or expense” incurred by the employer in providing an accommodation. Critically, the guidance notes both that the undue influence standard is higher under the ADA than it is under Title VII, and that prior EEOC guidance has identified COVID-19 as meeting the ADA’s
“direct threat standard.” This means that an employee with COVID-19 poses a “significant risk of substantial harm” in the workplace allowing employers to conduct certain tests the ADA would usually forbid, such as temperature checks. This could also mean that the disability exemption may not apply to a mandatory vaccination policy and program.

TITLE VII

Under Title VII, an employee also has a right to an accommodation of not taking a vaccine if the employee has a sincerely held religious belief that would be violated by receiving the vaccine. If providing such an accommodation represents more than a “de minimis” cost, i.e. imposes more than a minimal cost, the employer can enforce its mandatory vaccination policy and program. The costs incurred by the employer of providing the accommodation can be both economic and non-economic costs and would include the increased safety and legal risks presented by a non-vaccinated employee. Given the state of the virus and the compounding effect of flu season, it is possible and even likely that an employee refusing vaccination on religious grounds would present a more than minimal cost to the employer based on increased risk to employees, customers, and business operations. The level of risk brought to bear on an employer by a vaccine-refusing employee may be based on the specific job duties of that employee such as direct customer interaction, regular travel or an inability to use other public health measures to perform their job.

Interactive Dialogue Required

Regardless of whether an employee objects based on health or religious grounds, employers must engage with the objecting employee(s) to determine whether a reasonable accommodation would allow the employee(s) to perform the essential functions of their job without compromising the health and safety of the workplace. Employers should document the interactive process in writing, including the proposing of accommodations such as use of masks or other personal protective equipment, relocating the employee’s workstation, working from home, or even a leave of absence. Only those accommodations that do not present an undue hardship are required to be consider by the employer.

Don’t Forget About State Law – A Look at New Jersey, Pennsylvania & the Third Circuit

State law and the case law of the Third Circuit will also play a critical role in any workplace that may require employees to be vaccinated. As of January 2020, New Jersey law requires that each “health care facility” establish and implement annual flu vaccination programs including mandatory annual vaccinations. New Jersey law also
provides that some employer-required medical examinations, which may include vaccinations, must be paid for by the employer either directly or through reimbursement.

Pennsylvania on the other hand currently does not have a vaccination requirement law. Neither state prohibits private employers from enacting mandatory vaccine policies and programs, and the New Jersey law may provide the State with a means of requiring employees beyond the health care industry to get vaccinated.

The Third Circuit has addressed the issue of a religious objection to a mandatory vaccine program. In December 2017, the Third Circuit was faced with a hospital worker who was terminated for refusing to a get a flu shot in contradiction to his employer’s policy, on the basis of his religious beliefs. Fallon, the employee in Fallon v. Mercy Catholic Med. Ctr. Of S. Pa., 877 F.3d 487 (3d Cir. 2017), had previously had his religious exemption granted by the hospital, but in 2014 the employer’s standards had changed and that Fallon’s basis for his religious beliefs against vaccination were, the hospital said, no longer valid. Specifically, the hospital required a new level of proof to support claimed religious beliefs. The Third Circuit upheld the lower court’s dismissal of the employee’s lawsuit. The Court analyzed whether the employee’s beliefs were in fact religious and were in fact sincerely held. The Court analyzed:

(1) whether Fallon’s beliefs were, in the context of Fallon’s life, religious;

(2) whether Fallon’s beliefs occupied a place in Fallon’s life parallel to that filled by God in a traditionally religious person;

(3) whether Fallon’s beliefs addressed “fundamental and ultimate questions having to do with deep and imponderable matters”;

(4) whether Fallon’s beliefs were a “belief-system”; and

(5) whether there were any formal and external signs of Fallon’s beliefs.

The Court ultimately decided that Fallon’s beliefs, while sincerely held, were not religious and instead found that Fallon was worried about the health effects of the flu vaccine, disbelieved the science behind vaccines and wanted to avoid the vaccine. This case illustrates the employee-specific nature of exemption requests and that employers should analyze each employee’s situation independently. However, a deep dive into whether beliefs are truly religious should be reserved for the Courts. Rather, employers should mainly focus on whether the request for accommodation imposes an undue hardship on the employer. It also indicates that employers can require employees claiming religious beliefs to support those beliefs.

Based on the above, there is no law stopping employers who wish to require employees to be vaccinated from requiring its employees to receive a flu vaccine or potentially a COVID-19 vaccine through establishment and enactment of a mandatory vaccine policy and program. For employers seeking to enact such a policy and program they should start that process now and be mindful of the following concerns and best practices.

Practical Concerns and Best Practices for Employers Requiring Employees to be Vaccinated

Areas of Concern

In addition to the individual assessments described above, employers will also need to resolve questions including: is the vaccine effective? If multiple vaccines are brought to market which one should be mandated? Who should pay for the vaccinations? How widely available will the vaccination be? How long is it effective for?

Further, other complicating factors related to mandatory vaccines include: Unionized workforces. Applicable collective bargaining agreements may directly address mandatory vaccines or other health screenings, and nearly all agreements would dictate that implementation of such a policy either requires union consent or must be bargained for.

Age Discrimination

Given that older individuals are more susceptible to both COVID-19 and the flu, employers may think it best to exclude or treat these employees differently. However, even when done for altruistic reasons, such differing treatment is a violation of the ADEA and exposes employers to significant liability and costly litigation.

Workers Compensation and Employer Liability

There is the potential for liability where an employee mandates a vaccine and an employee has an adverse reaction to the vaccine including workers’ compensation claims if not lawsuits. While the federal government provides for such relief, the implementation of a mandatory vaccine policy may shift liability to the employer. Conversely, if an employer does not mandate vaccinations and infection arises there could also be attendant liability for the employer. This potential further solidifies that employers must carefully draft its policy and program and do so with the assistance of counsel.

Refusal to work

Federal law provides that employees who hold a reasonable belief of danger or death, and where such belief is based on fact, can refuse to attend work if the employer refuses to mitigate the danger. If an employer does not mandate a vaccine, its workforce may have grounds to refuse to work.

Best Practices

Start now. Employers should enact vaccination policies now regardless of whether the policy will mandate or simply encourage employees to take the vaccine. If vaccines are to be mandated, employers should also engage in the interactive process for any religion-based objections now to avoid this time-consuming process occurring when the vaccine is ready.

Cast a wide net

Employers should consider all aspects of a mandatory vaccine policy including which employees it will apply to, how to assess the effectiveness and safety of a COVID-19 vaccine, what to do if there is limited availability of COVID-19 vaccine, and what accommodations the employer is willing, and not willing to provide.

Be specific

Employers should ensure that their policies designate which protocols apply to which vaccines, flu, COVID-19, and others. Further, parameters for how vaccinations will occur, establishing proof of vaccination, the objection process, and alternative measures should be specifically spelled out to avoid ambiguity.

Open communication

Prior to any vaccine policy being rolled out, employers should review the policy and procedures with employees and answer as many questions as possible to avoid confusion and apprehension on the part of employees and management-level employees responsible for administering the policy.

Consider alternative measures

Some alternatives to vaccines, which can also be used as accommodations, include: masks or other PPE, moving non-vaccinated employees to either different workspaces, different locations or departments without altering terms and conditions of employment, and expanding remote work while ensuring teleworking policies are in good condition.

Stick to the law.

Employers must remember that currently only religious and medical reasons provide employees with an exception to mandatory vaccines. Ethical obligations, fear, or similar anti-vaccination beliefs have rarely been accepted as valid reasons for refusing to comply with an employer’s mandatory vaccination policy. Employers should only consider and evaluate objections based on religious and medical reasons, and avoid considering exemptions based on generalized fear or non-religious beliefs.
By acting now, employers will be ready when a new vaccine is announced, and will be able to navigate this new terrain by minimizing the impact on both employees and business continuity.

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Let’s look at the key income tax provisions in the CARES Act. While a great deal of attention has been given to the availability of business loans under the Paycheck Protection Program, businesses can also take advantage of certain changes to the Internal Revenue Code (“IRC”) in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Here are beneficial provisions:

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Bonus Depreciation of Qualified Improvement Property in CARES Act 

Under the CARES Act, “Qualified Improvement Property” (“QIP”) is now classified as 15-year property that is eligible for bonus depreciation through 2022 and is subject to a 20-year life under the Alternative Depreciation System (ADS), effective for tax years beginning after December 31, 2017. Under Section 168 of the IRC, “QIP” includes any improvement to the interior portion of a nonresidential building placed in service after the building, other than (i) an enlargement of the building, (ii) any elevator or escalator, and (iii) any internal structural framework of the building. These changes effectively correct the Tax Cuts and Jobs Act of 2017 (“TCJA”), in which Congress inadvertently disqualified QIP placed in service after December 31, 2017 from 100% bonus depreciation.

Because these changes are retroactive, you may be able to amend your 2018 income tax returns or amend/adjust your 2019 returns (depending on whether those returns have been filed) to take advantage of the changes. Additionally, if these changes create a net operating loss (NOL) in 2018 or 2019, you may be able to take advantage of another provision in the CARES Act, described below.

Business Loss Provisions in CARES Act 

The CARES Act allows taxpayers to carry back net operating losses (NOLs) arising in tax years ending after December 31, 2017 and before January 1, 2021 to the five (5) prior tax years. The Act also allows taxpayers to apply NOLs to offset 100% of the taxpayer’s income in tax years prior to January 1, 2021; previously, taxpayers were limited to applying NOLs to 80% of their taxable income. C corporations have the option to elect to file for an accelerated refund to claim the benefit of the carryback. Real Estate Investment Trusts (REITs) are excluded from the carryback provision, and NOL carrybacks cannot be used to offset income included under IRC Section 965(a). See IRC §172.

The CARES Act also removes the limitation on excess business losses for taxpayers other than corporations for tax years beginning after December 31, 2017 and before January 1, 2021. See IRC §461(l).

Business Interest Deductions

Under the TCJA, a taxpayer could deduct a portion of its business interest expense equal to business income plus 30% of adjusted taxable income (ATI) – essentially, taxable income without depreciation and certain other deductions. For tax years beginning in 2019 and 2020, the CARES Act increases the formula threshold to 50% of ATI. For partnerships, the increase to the ATI threshold is only applicable for tax years beginning in 2020. In calculating the deductible amount of business interest expense, taxpayers (including partnerships) may also elect to substitute 2019 ATI for 2020 ATI. See IRC 163(j).

Charitable Contribution Deductions in CARES Act 

The CARES Act increases the limitation on charitable contributions for corporations from 10% of taxable income to 25% of taxable income, and the limitation on contribution to food inventory is increased from 15% to 20%. See IRC §170.

In addition, for individuals who itemize their deductions, the CARES Act suspends the percentage limitation on the deduction for qualifying charitable contributions for the 2020 tax year. This means that taxpayers who itemize may effectively deduct qualifying charitable contributions up to an amount equal to their adjusted gross income. Previously, the deduction for qualifying charitable contributions was limited to 60% of an individual taxpayer’s adjusted gross income. See IRC §62.

This e-alert is provided by Hyland Levin Shapiro LLP as a general summary of the topics discussed; it does not replace the need to consult with a legal or tax professional and is not intended to be a substitute for competent professional advice, including any advice regarding the effect of the CARES Act on your particular business. If you have any questions about the provisions summarized above, please contact Stephen M. Geria at geria@hylandlevin.com or 856.355.2920 or Harvey Shapiro at shapiroh@hylandlevin.com or 856.355.2990.

To ensure compliance with U.S. Treasury Department Circular 230, which governs all practitioners before the Internal Revenue Service, we are required to inform you that any tax advice that may be contained in this communication is not intended or written to be used, nor can be used, by any recipient for the purpose of (i) avoiding penalties that might be imposed pursuant to the Internal Revenue Code or U.S. Treasury Regulations, or applicable state or local law or regulation; or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

Signed into law by President Trump last Friday, the CARES Act is designed to provide assistance to American workers, families, businesses, municipalities and health care systems through an over $2 trillion stimulus package. Given the enormous reach of the bill, its impact on commercial real estate, and in particular landlords and creditors, is extensive. Here are some important highlights of the Coronavirus Economic Stabilization Act of 2020 as it pertains to commercial real estate:

What support does the CARES Act provide?

The Act provides direct support to multifamily properties in the form of forbearance relief for those with federally backed loans. Section 4023 of the Act specifies that multifamily borrowers with federally backed multifamily mortgage loans experiencing financial hardship due to COVID-19 may submit a request for forbearance to the borrower’s servicer affirming that the multifamily borrower is experiencing financial hardship as a result of the COVID-19 crisis. Servicers should provide the forbearance for up to 30 days to those multifamily borrowers showing such financial hardship, which forbearance may be extended for two additional 30 day periods. By availing itself of the forbearance under Section 4023 of the Act, a multifamily borrower may not, during the forbearance term, evict or initiate eviction proceedings against a tenant solely for nonpayment of rent or other charges and may not charge any late fees, penalties or other charges to such tenant for late payment of rent. Likewise, multifamily borrowers receiving forbearance may not issue a notice to vacate to a tenant during the forbearance, nor require a tenant to vacate a dwelling unit earlier than 30 days after the date such tenant is provided with notice to vacate. Federally backed multifamily mortgage loans include those purchased or securitized by Freddie Mac and Fannie Mae, making this form of relief available to more than 27,000 properties nationally. The FDIC has also encouraged banks to consider short-term mortgage forbearance for multifamily borrowers facing reduced revenue streams as a result of the COVID-19 crisis.

More generally, the CARES Act supports the commercial real estate industry by providing income assistance to residential tenants and consumers and liquidity, in the form of loans and other relief, to commercial tenants. Making direct payments and providing enhanced unemployment benefits to citizens will help stabilize employment and strengthen residents’ ability to make rental payments during the COVID-19 crisis. Smaller commercial tenants may be able to secure funds for essentials like paying rent, mortgages, utilities and payroll through expanded SBA loan programs.

What actions are restricted by the CARES Act?

The legislation places temporary moratoriums on the ability to foreclose on federally backed mortgage loans and evict residential tenants from covered properties, which include properties that have a federally backed mortgage loan or federally backed multifamily mortgage loan, in addition to those participating in other federal housing programs. Section 4022 of the Act allows a borrower with a federally backed mortgage loan experiencing financial hardship due to the COVID-19 crisis to request forbearance for 180 days, which relief may be extended an additional 180 days. Servicers are to provide the forbearance to requesting borrowers with no documentation required beyond the borrower’s attestation to the financial hardship caused by the COVID-19 emergency, and with no fees, penalties or interest charges beyond the amounts scheduled or calculated as if all contractual payments had been made on time and in full. Servicers of federally backed mortgage loans are also barred from initiating foreclosure, moving for a foreclosure judgment or order of sale, or executing a foreclosure-related eviction or sale for at least 60 days beginning March 18, 2020. Under Section 4024, a 120 day moratorium effective from enactment of the Act was placed on actions to recover possession of a covered dwelling from a tenant for nonpayment of rent or other charges. Residential landlords may not require a tenant to vacate a covered dwelling unit earlier than 30 days after providing the tenant with such notice to vacate, nor issue a notice to vacate during the 120 day period.

What is the latest from New Jersey and Pennsylvania?

Although ever-changing, like everything involving the COVID-19 crisis, landlords and creditors must also be aware of new legislation and current executive and judicial orders issued at the State level. As of this writing, below is the latest information on eviction and foreclosure related limitations in Pennsylvania and New Jersey:

Pennsylvania – On March 16, 2020, the Pennsylvania Supreme Court declared a statewide judicial emergency effective until April 14, 2020. On March 18, 2020, the court made clear that during the judicial emergency, no eviction, ejectment or other displacement from a residence based on failure to make payment is permitted. This appears to only apply to residential/consumer matters and not commercial matters (though arguably a personal guaranty of a commercial mortgage may fall into this category). Pennsylvania state courts are currently closed to the public for non-essential functions through at least April 3, 2020. All time calculations and deadlines relevant to court cases or other business are suspended through April 3, 2020.

New Jersey – On March 19, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 106, which imposes a moratorium on removing individuals from their homes via eviction or foreclosure proceedings. The Governor has asked that financial institutions holding residential or commercial mortgages, equity loans, lines of credit or business loans implement a process to work with the borrowers to avoid foreclosure or default arising out of the financial hardships caused by the COVID-19 pandemic, or any government response thereto. On March 28, 2020, Governor Murphy announced a mortgage payment relief initiative for New Jersey homeowners approved by Citigroup, JP Morgan Chase, U.S. Bank, Wells Fargo, Bank of America and over 40 other federal and state-chartered banks, credit unions and servicers offering (i) mortgage payment forbearance of up to 90 days to borrowers economically impacted by COVID-19, (ii) a moratorium on foreclosure sales or evictions of at least 60 days, (iii) relief from mortgage-related late fees and other charges for at least 90 days for borrowers requesting COVID-19 related assistance and (iv) restricting financial institutions from negative credit reporting for borrowers requesting COVID-19 related relief. He has also instructed residential landlords in the State to work with renters so they can remain in their homes, and warned that those who seek to evict tenants during this time will face stern consequences for violating the eviction moratorium.

What are the implications for residential and commercial landlords?

Given the eviction moratoriums presently in place and the importance placed by the CARES Act on allowing owners and renters to remain in their homes, multifamily owners who experience significant revenue declines may need to make use of the forbearance options or negotiate loan modifications or extensions with creditors. Commercial landlords will likely need to negotiate with both their tenants who are facing significant economic stress in keeping up with rent obligations and their lenders. In the current COVID-19 crisis, being proactive and initiating conversations is definitely preferred over the “wait and see” approach.Borrowers should review their loan covenants now, particularly for any material adverse change, force majeure and similar clauses; test any cash flow or financial covenants; and review any limitations on their ability to modify, cancel or amend leases, property management agreements or other key contracts. Commercial leases must be reviewed to confirm whether the COVID-19 crisis qualifies as a force majeure event or triggers common law doctrines of impossibility, impracticability and/or frustration of purpose which may be applicable depending on the jurisdiction. Co-tenancy, continuous operations, access, exclusive and other use restrictions may also be impacted as a result of State or local restrictions and orders being in effect, for example allowing dine-in restaurant tenants to convert to take-out only service.

Landlords should also take the following actions to strengthen their tenant and lender relationships and in anticipation of heightened lender diligence:

• Consider imposing new or additional health, safety and maintenance regulations and performing increased cleaning activities at the subject property, and develop an employee or critical staff contingency plan that can be shared with lenders
• Document all communications with tenants regarding the COVID-19 emergency and any rental payment obligations, but make clear no modifications, forbearance or waivers of any lease terms are approved until documented in a formal amendment or agreement
  Eliminate unnecessary expenses and consider creative solutions to reduce marginal costs
• Develop a cash flow forecast that projects anticipated liquidity for 30, 60, 90 days based on stated assumptions and update the cash flow forecast with data as information becomes available
  Review all business interruption, rent loss and similar insurance policies to determine whether insurance benefits are available
• In addition to the above steps, landlords and borrowers would be well served to educate themselves about the relief programs available to their tenants. Encouraging residential tenants to secure direct cash payments under the CARES Act and commercial tenants to consider these new loan programs providing funding for rent payments, should increase the probability that tenants will satisfy their rental obligations.

If you have any questions or to further discuss the impact of the CARES Act on landlords and creditors, please contact Lauren Beetle at 856.355.2913 or beetle@hylandlevin.com or Julie Murphy at 856.355.2992 or murphy@hylandlevin.com.

Let’s examine what you need to know about bankruptcy provisions in commercial leases. Each property is unique and every relationship has its own contours that will drive the path of commercial lease negotiations. While a lease cannot account for or predict every potential scenario in the course of a commercial landlord-tenant relationship, landlords can put themselves in a better position to weather a tenant bankruptcy by understanding the bankruptcy landscape, including which provisions will be enforced and which provisions will be ignored by bankruptcy courts.

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Most landlords know that commercial bankruptcy cases generally take one of two forms: chapter 7 or chapter 11. In both types of cases, the automatic stay applies. In both types of cases, the commercial lease can be assumed, assigned or rejected within a finite period of time. A chapter 7 case is a liquidating case, while chapter 11 cases are typically reorganizations.

A tenant filing bankruptcy under chapter 7 will cease doing business. There, the court appoints a chapter 7 trustee to gather and liquidate assets and to distribute the proceeds to creditors. While the debtor tenant in a chapter 7 case is unlikely to continue the lease, the trustee may sell/assign a valuable lease to a third party. Negotiations in a chapter 7 case take place with the chapter 7 trustee, rather than with the debtor tenant.

On the other hand, a tenant filing a chapter 11 bankruptcy generally continues operations as a “debtor-in-possession.” The chapter 11 case typically culminates in a plan of reorganization, through which the debtor will outline its plans to fund payments to creditors, restructure debt and continue operations as the entity emerges from bankruptcy. Often, chapter 11 debtors seek to shed debt by rejecting above-market leases or leveraging the right to assume and reject leases by extracting rent concessions from landlords as a condition to lease assumption. Absent unusual circumstances, the court will not appoint a trustee, thus negotiations take place with the debtor tenant.

While a tenant bankruptcy filing shifts the balance of power to the tenant, defensively drafted leases may allow the landlord to retain some control and negotiating advantage after the filing of a bankruptcy.

7 Bankruptcy Provisions in Commercial Leases

(1) Tenant bankruptcy triggering lease termination
Bankruptcy provisions in commercial leases that would terminate a lease or modify other rights of a bankrupt party upon the filing of a bankruptcy petition are known as ipso facto clauses and are unenforceable under the Bankruptcy Code. Bottom line: Don’t waste your leverage trying to incorporate or keep an ipso facto provision in the lease.

(2) Waiver of the automatic stay.
The filing of a bankruptcy petition automatically triggers a stay of all activities to collect a debt, including efforts to obtain possession of property. To avoid the delay associated with the  imposition of the stay, consider including a provision requiring the tenant to waive the protection of the automatic stay or a waiver of the right to contest a motion by the landlord for relief from the stay. The remedy, if enforced by a court, allows a landlord to obtain relief much sooner than it would otherwise be entitled, particularly because courts are reluctant to grant stay relief in the early days of a bankruptcy case. Bottom line: Whether this provision is worth fighting for depends on your jurisdiction. Not all courts will enforce a pre-petition waiver of the stay, and even if they will, the waiver will generally not be “self-executing”. The blessing of the court is needed. Therefore, to avoid the imposition of sanctions that accompany a violation of the stay (or the voiding of stay-violating activities), landlords with waivers in a lease should consult with counsel on filing the appropriate motion with the bankruptcy court before pursuing eviction or collection activities.

(3) Adequate Assurance Definition.
Under the Bankruptcy Code, in order for a bankrupt tenant to assume a lease, it must provide the landlord adequate assurance that it will meet its future lease obligations. The Bankruptcy Code does not define “adequate assurance”, but the parties can define the concept in the lease to narrow the issues in bankruptcy court litigation. Adequate assurance provisions often require the tenant provide assurances as to (i) the source of future rent, including that any assignee is similarly situated, financially, to the tenant at the time the lease was signed, (ii) the stability of the percentage rent, if applicable; and (iii) non-disruption to the tenant mix in the center or complex. Bottom line: A lease containing specific understandings of ambiguous bankruptcy concepts will carry greater weight with a court interpreting a tenant’s post-petition obligations to its landlord.

(4) Shopping Center Provisions.
While bankruptcy courts do not favor limitations or conditions on the assignability of a lease, shopping center leases receive special treatment and, as a result, shopping center landlords have greater leverage in post-petition assignment negotiations. Therefore, if a property can reasonably be considered a shopping center, including a provision indicating that the property is a shopping center may afford a landlord with additional leverage and protections. Any shopping center lease should require that any assignee of the lease in a bankruptcy adhere to exclusive use (or other use restrictions), co-tenancy and tenant mix requirements. Bottom line: Ensure that any
shopping center lease contains provisions that protect the future viability and maintain the integrity of the shopping center if a tenant lease is assumed and assigned in bankruptcy.

(5) Security.
Cash may be king, but, generally, security deposits become property of the debtor’s estate once a bankruptcy petition is filed, limiting the setoff rights of a landlord and requiring motion practice in the bankruptcy court. A letter of credit, coupled with a lease provision allowing the landlord to draw upon it after default and without notice to the tenant, generally falls outside of “property of the estate” and therefore provides more ready access to cash to a landlord whose tenant has filed for bankruptcy. Bottom line: Securing the tenant’s obligations under the lease by collateral that falls outside the umbrella of “property of the estate” puts the landlord in a better position to recover costs when dealing with a tenant in bankruptcy.

(6) Guarantors.
A corporate parent or affiliate guaranty provides additional security for the tenant’s lease. Frequently, however, that guarantor often files bankruptcy at the same time as the tenant, and the landlord’s claim against the guarantor becomes one of many unsecured claims that will receive cents-on-the-dollar recovery. Personal guaranties from tenant equity holders may provide more protection because of the “skin in the game” and a reluctance of many individuals to file personal bankruptcy. Bottom line: The newer the business or the more limited financial history of your tenant, the more compelling a case for obtaining personal guaranties.

(7) Forecasting Trouble.
Bankruptcy provisions in commercial leases that require the submission periodic financial statements, balance sheets and cash flow statements from a tenant and any guarantors will allow a landlord to monitor the performance of its tenant. Leases containing financial covenants provide a mechanism for a landlord to call a default if financial performance declines. Having a heads-up to financial distress can allow the landlord to exercise remedies quickly and potentially in advance of any bankruptcy filing. The automatic stay does not apply to leases terminated pre-petition, so moving quickly to terminate in a distressed situation may give the landlord a valuable edge in regaining possession of the property outside of the bankruptcy court. Bottom line: The more you know about your tenant’s finances, the better you can react to a deteriorating situation, whether by exercising remedies or bolstering the security for the tenant’s obligations under the lease.

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Have questions about about bankruptcy provisions in commercial leases?

After a spring frenzy to negotiate rent deferrals, abatements and lease amendments, retailers and other commercial tenants are seeking, in droves, the protection of the bankruptcy courts to restructure financial obligations and shed leases for non-performing store locations. The brands are storied: J. Crew, Neiman Marcus, GNC, Ann Taylor, Lord & Taylor, Brooks Brothers, Modell’s. Shopping centers, malls, mixed use spaces – few commercial landlords are spared. With no sign of a slow-down, this article provides a refresher on your rights, as a commercial landlord, in commercial tenant bankruptcies.

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Commercial Tenant Bankruptcies 101: THE BASICS

• Ipso facto clauses in a lease, which trigger default or acceleration upon the filing of a bankruptcy case, are generally unenforceable under the Bankruptcy Code. Thus, you cannot terminate a lease or stop performing your obligations under the lease on account of the bankruptcy filing.

• The filing of a bankruptcy case triggers the automatic stay, which requires all actions to enforce the lease, evict the tenant or collect a debt (including unpaid rent) to cease. Unless you have a judgment to possess the subject premises, or the lease has otherwise expired by its terms, you must not continue to pursue collection or enforcement activities.

• A commercial debtor may assume a lease and assign it to a third party, in most circumstances without your consent, even if the lease requires the consent of the landlord to assignment.

• A commercial debtor may reject a lease based on its business judgment, and you have very few (virtually no) grounds on which to object to a lease rejection.

Commercial Tenant Bankruptcies 201: WHEN WILL I GET PAID AND HOW MUCH?

In pre-pandemic times, a commercial landlord could rely on provisions of the Bankruptcy Code that require bankrupt tenants to continue paying rent under the lease during the pendency of the case (post-petition rent). During the pandemic, however, debtor-tenants have drawn on the equitable powers of the bankruptcy courts to suspend the obligation to make post-petition rent payments. In such cases, you should consult with counsel early in the case to ensure that appropriate measures are taken to protect your rights to receive, or, at the very least, make a claim for post-petition rent.

Recovery of unpaid rent will depend on how the debtor treats the lease as well as the financial health of the bankruptcy estate. Tenants under assumed leases must cure all breaches under the lease, including to pay in full all unpaid pre-petition and post-petition rent and other charges, such as CAM, any damages incurred as a result of the breach of the lease. Depending on the terms of the lease, the cure costs may also include attorneys’ fees incurred in connection with a breach of the lease and the bankruptcy itself. The cure amounts must be paid at the time the lease is assumed by the debtor or its assignee.

Landlords under rejected leases, on the other hand, are entitled to a claim against the bankruptcy estate, which, depending on the financial health of the debtor, may be paid in full, in part or not at all. While unpaid postpetition rent constitutes an administrative (or dollar-for-dollar) claim against the estate, all other pre petition rent and damages caused by the rejection of the lease constitute unsecured (often, cents-on-the-dollar) claims, and will be paid pro rata with other unsecured creditors. Further, while rejection damages include the amount of rent remaining in the life of its lease, damages are statutorily capped at the greater of one year of rent or the rent for 15% of the remaining term of the lease, not to exceed three (3) years. Landlords who successfully mitigate their damages and re-let the premises may not be entitled to any claim if the rent received under the new lease is greater than or equal to the rent under the existing lease. Payments on unsecured claims are typically paid, if at all, after the debtor has confirmed a plan of reorganization.

Commercial Tenant Bankruptcies 301: DO I HAVE TO ACCEPT A RENT REDUCTION?

Bankruptcy affords the debtor tenant a unique opportunity to re-negotiate its leases. On one hand, the Bankruptcy Code prohibits the debtor from cherry picking which provisions of a lease it wants to assume and which provisions it would like to reject; instead, the Code requires the debtor to assume or reject the lease in its entirety. On the other hand, many debtor tenants leverage the specter of potential rejection to obtain significant rent concessions from landlords. Rent reduction negotiations often begin in the pre-bankruptcy period and continue in the early days of the case, with landlords being told that failure to negotiate will result in certain rejection.

You do not have to negotiate with the debtor tenant or accept a rent reduction, though doing so may increase the possibility of the assumption of your lease. Debtor tenants are more likely to reject leases:

• Not essential to the continued operation of the business,
• With above-market rent,
• In areas saturated with other debtor locations, or
• With low-performing stores.

If your lease falls outside of these categories, then the debtor may assume the lease even without obtaining a rent (or other) concession.

Commercial Tenant Bankruptcies THE BIG PICTURE

As soon as a tenant shows signs of financial weakness, consider actively pursuing remedies under the lease, including termination or eviction proceedings. If the lease has expired or you have already obtained a judgment for possession when your tenant has filed for bankruptcy, tear up this article! (after confirming with your attorney that the lease is, in fact, properly terminated).

If the lease has not expired or terminated at the time of filing, be sure to engage bankruptcy counsel to review the proceedings and protect your interests in the case. Bankruptcy counsel will object to any insufficient cure amount, file a proof of claim for your damages and review any plan of reorganization to advise you of your
anticipated recoveries. Even though retail bankruptcies have become commonplace, sound counsel will ensure
that your rights are protected and help you get paid.

Finally, engage competent real estate professionals, who can provide an accurate assessment of current market
rent and assist in finding a replacement tenant to satisfy and requirement that you mitigate your damages
after rejection/termination of the lease.

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Commercial real estate players use letters of intent (LOIs) or term sheets all the time. Buyers and tenants present offers this way, often to see if a deal can be reached before incurring the costs of negotiating an agreement of sale or a lease (the Definitive Agreement). The key question is whether these agreements are binding or not. The legal principles are fairly easy to state: If the parties intend not to be bound to each other prior to the execution of a Definitive Agreement, the courts will give effect to that intent and the parties will not be bound until the agreement has been fully executed and delivered. This is true even if all issues in the negotiations have been resolved. Conversely, if the parties intend to be bound prior to the execution of a Definitive Agreement, the court will give effect to that intent, and the parties will be bound even though they contemplate replacing their earlier understanding with a later written agreement. Courts have consistently stated that the most important factor in determining whether or which provisions in an LOI are binding is the language used by the parties in the letters of intent themselves.

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Typically, parties draft letters of intent to be partially binding. The letters of intent will contain provisions not intended to be binding and provisions expressly intended to be binding on the parties. The non-binding provisions consist primarily of the “deal points”, such as a description of the key components of a proposed transaction and any important conditions. For an agreement of sale, these include the purchase price, deposit, due diligence period, deal contingencies (e.g. financing, licensing and land use approvals), time for closing and broker payment obligations. For a lease agreement, these include the rental rate, security deposit, tenant allowance, responsibility for repairs and replacements, use and exclusivity terms, brokers and any unique arrangements. The binding provisions focus on the negotiation time period, including access to information, confidentiality, a “no-shop” or exclusivity provision in which the seller or landlord agrees not to sell or lease the subject property to another for a specified period of time, broker representations and protection and non-disclosure (to third parties) obligations. There should be a termination provision and natural end date for the life of the LOI.

The main purpose of typical letters of intent is for the parties to formulate deal points without committing to the actual transaction. Letters of intent provide counsel a blueprint for preparation of the Definitive Agreement, saving time and money. Letters of intent can keep the deal momentum moving forward while negotiating the details of a Definitive Agreement, especially when they contain milestones for delivering a draft and executing a final version. Moreover, an LOI may be necessary for a lender or investor to move to the next step of its process.
However, there are also potential risks in using LOIs. If inartfully drafted, or if the parties act as though they have reached a deal, the LOI may be deemed a binding contract, obligating the parties prematurely.

Further, many courts have found that execution of a letters of intent  creates an obligation for the parties to negotiate, in good faith, a reasonable agreement, which may be an unintended consequence of signing. Another
possible disadvantage of using an LOI is that a party may share the letter with a competing bidder to shop the deal to see if they can get a better offer. Even worse, deal momentum may die while negotiating a trivial LOI provision for a simple transaction that could have gone straight to the Definitive Agreement.

Indeed it is often the case that conceptual agreement on the basic deal points will allow a buyer to prepare
an agreement of sale, without the need to incur the time and expense of negotiating letters of intent. But, for
the complex commercial transaction, an LOI can provide a necessary level of comfort prior to expending significant resources on investigations, inspections, analysis and negotiation of a Definitive Agreement.

If you use letters of intent, be clear and specifically describe the binding provisions, carefully distinguishing them
from the non-binding provisions. If there are no special conditions or complicating factors, go straight to the Definitive Agreement instead of preparing an LOI to avoid unintended consequences, such as a forming a contract or creating an obligation to negotiate in good faith.

The contents of this article are for informational purposes only and none of these materials is offered,
nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Let’s take a look at New Jersey Construction Lien Law. For builders and contractors alike, the words “construction lien” can be anxiety inducing. Contractors, on the one hand, know that a lien can be a valuable tool for recovering outstanding money; however, the requirements of a New Jersey Construction Lien Law claim are not intuitive, and failure to strictly comply with statutory requirements may result in a waiver of lien rights. Owners, on the other hand, know that encumbrances, even wrongfully filed ones, may threaten the timing of a transaction and cause unforeseen expenses.

The New Jersey Construction Lien Law, N.J.S.A. § 2A:44A:1 et. seq. (“Lien Law”), contains many specific provisions and must be carefully followed. A few essential pointers are highlighted below.

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New Jersey Construction Lien Law for Claimants:

1. The filing requirements for lien claims in commercial and residential projects are very different. For commercial construction projects, a lien claim must be filed in the county where the project is located within 90 days of the last date that work, services or material were provided to the project. For residential construction projects, a Notice of Unpaid Balance (“NUB”) is a prerequisite to the filing of a lien claim and must be filed within 60 days of the last date that work, services, or material were provided. There are numerous additional requirements that flow from these preliminary deadlines. Claimants must be cognizant of the type of job they are performing in order to ensure that they do not violate filing deadlines.

2. Be aware of the “last date” of work. Under the Lien Law, the “last date” on which work, services or materials were provided marks the date on which the clock starts ticking on a contractor’s right to file a lien. For practical purposes, contractors should interpret the “last date” as the date on which they achieve substantial completion. Contractors often mistakenly assume that because they were still “on the job,” that the clock did not start to run on their lien rights. This is an incorrect assumption. “Punch list,” warranty, or other corrective work will not extend the deadline for the filing of a lien claim or notice of unpaid balance.

3. Be sure that the contract and all change orders are accepted in writing. Contractors have no right to file a lien claim in connection with work that was not performed pursuant to an executed contract or change order. Handshakes and verbal directives in the field will not pass muster, regardless of whether the work was accepted and approved. Contractors that do not have written agreements may be able to recover payment through a separate lawsuit for breach of contract, however, they will not have lien rights.

4. Do not forget to actually file suit on the lien claim, and to do so on time. A lien claim is a pre-requisite to a lawsuit, but it is not an actual lawsuit. Short of settlement, in order to obtain payment after the filing of a lien claim, the claimant must file a legal action based upon the lien claim. This must be done, not within 1 year of the filing of the lien claim, but within 1 year of the last date of work. It is critical that a claimant understand this distinction and meet the deadline for filing.

New Jersey Construction Lien Law for Owners:

1. Obtain a lien release and waiver with each payment. Owners should not make payments for work, services
or material without simultaneously receiving corresponding progressive, written lien releases and waivers
from their contractors and suppliers. Contractors should, in turn, should be required to obtain releases and waivers from their own subcontractors and suppliers.

2. Consider using joint checks. Making payment by joint check can help ensure that funds reach their intended destination and prevent claims for non-payment by lower tier subcontractors and suppliers.

3. Consult with counsel to scrutinize the filing. Experienced counsel will be able to determine whether any number of substantive or technical requirements have been violated by a given lien claim, including but not limited to: filing deadline errors, service errors, improper identification of the property or project, whether a balance is overstated, whether a claimed balance is based upon a sufficient writing, and whether the claimant is a proper claimant given its tier. Claimants who file improper or overstated lien claims may be forced to pay costs associated with discharging the wrongfully filed lien, such as attorney’s fees.

4. Post a bond. Particularly in instances in which a property is pending sale or transfer, the owner or its contractor (if the lien is filed by a lower tier subcontractor) may post a bond with the clerk of the county where the lien was filed in an amount equal to 110% of the lien claim. The county clerk will then mark the lien as discharged. The claimant’s rights will be unaffected, but the property will be free of the lien, and the pending transaction should be able to proceed. There are carrying costs associated with the posting of a bond; however, use of a bond can be a valuable tool in many instances. If a bond is posted, consider the option of demanding that the claimant file suit within 30 days in order to accelerate resolution of the matter.

The Lien Law is a highly technical statute with numerous requirements; however, when used correctly, it can be a tremendous vehicle for recovery. Claimants and owners should always confer with counsel in order to ensure that their rights and interests are effectively guarded.

Want More Information on New Jersey Construction Lien Law?

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

Contact Us

Daniella Gordon, Esquire
Hyland Levin LLP
6000 Sagemore Drive, Suite 6301
Marlton, NJ 08053-3900

(p) 856.355.2915
(f) 856.355.2901

Let’s explore fixtures, trade fixtures and who owns what at lease expiration. In order to facilitate a smooth transition between commercial tenants, it is important for landlords to understand their rights regarding items attached to their property. Generally, a lease will govern these rights. However, if the lease is silent on the issue, articles annexed to the property deemed “fixtures” must stay with the property, while articles deemed “trade fixtures” may be removed by a vacating tenant.

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In New Jersey, a fixture is an object that “become[s] so related to particular real estate that an interest… arises under real estate law.” N.J.S.A. 12A:2A-309(1)(a). In contrast, an article may be considered to be a trade fixture if: (1) the article is annexed to the property for the purpose of aiding in the conduct of a trade or business exercised on the premises; and (2) the article is capable of removal from the premises without material injury thereto. Handler v. Horns, 2 N.J. 18, 24-25 (1949). As such, an important distinction between fixtures and trade fixtures is whether removal of the item will cause material injury to the premises. See e.g. GMC v. City of Linden, 150 N.J. 522, 534 (1997). In applying this test, courts infer that if removal of an article would cause material injury to the premises, the parties must have intended for the article to remain beyond the lease term. Id.

A typical conflict involving this nuanced distinction may involve a vacating tenant removing an item from the leased premises under the assumption that it was (1) attached to the premises for the purpose of conducting a trade or business; and (2) capable of removal without material injury to the premises. A landlord may dispute one or more of these assumptions, arguing that the article was not used in the conduct of business (that it was in fact attached to improve the structure) or is not capable of removal without material injury to the premises. Over the years, vacating tenants have attempted to remove countless items from leased premises, including air conditioning systems, irrigation systems, bolted down light fixtures and even circuit breaker panels, by arguing these items were trade fixtures. See e.g. In re Jackson Tanker Corp., 69 B.R. 850 (Bankr. S.D.N.Y. 1987).

However, it isn’t difficult to imagine a hypothetical where the traditional landlord and tenant arguments are reversed – that is, where the tenant argues that the article must remain with the property and the landlord argues that the tenant is responsible for its removal. This unusual fact pattern may especially arise where the tenant’s business is specialized in nature, and where equipment is not easily removed from the premises.

For example, Landlord rents out space to Tenant, who plans on operating a restaurant. The lease does not specifically address what does and does not constitute a trade fixture. Tenant plans on installing a walk in freezer and other specialized, complex systems. After several years of operating, Tenant declines to renew the lease, closes, and vacates the premises. Tenant removes the furniture, appliances not fixed to the premises and other items it deems to be trade fixtures and leaves the walk-in freezer infrastructure.

Tenant refuses to remove the walk-in freezer, arguing its removal will cause substantial damage to the premises. Unable to re-let the premises to a restaurant tenant, Landlord is left with a walk-in freezer occupying a substantial portion of the premises.

It is important that during the lease negotiation, landlords think carefully about the business their prospective tenant is in, the kinds of equipment the tenant will install and what will happen to that equipment upon termination of the lease. This same thought process applies when landlords receive requests for alterations. In the above hypothetical, Landlord could have avoided being left with a walk-in freezer and a less than desirable space if it addressed the issue during negotiation of the lease. A discussion with prospective tenants concerning the specific kinds equipment the tenant will install is always a good idea, followed by specifications and drawings for approval. Landlords are wise to reduce these conversations to writing, and specifically address each party’s expectations regarding the disposition of specific equipment when the lease inevitably comes to an end. As always, an ounce of prevention is worth a pound of cure.

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

William F. Hanna, Esquire
Hyland Levin LLP
6000 Sagemore Drive, Suite 6301
Marlton, NJ 08053-3900
(p) 856.355.2900
(f) 856.355.2901
www.hylandlevin.com

When a commercial tenant files for bankruptcy is not often a surprise to its landlord. Rent payments may arrive late, financial covenants may be missed, and the tenant may become generally unresponsive in the pre-bankruptcy period.

While the provisions of the bankruptcy code governing the treatment of leases are among the more complex in the code, this article provides guidance to landlords in navigating a commercial tenant’s bankruptcy and maximizing recovery on its claims.

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Beware of the Automatic Stay when a commercial tenant files for bankruptcy

Upon learning a tenant files for bankruptcy , the landlord must abide the automatic stay. The automatic stay restrains actions to collect on a claim against the tenant, including enforcement of a judgment, creation of a lien, or otherwise attempting to recover any of the tenant’s property. The landlord may not, therefore, send a default letter or prosecute an eviction action. While limited exceptions to this general rule exist, a landlord should consult with counsel before taking any post-bankruptcy legal action against its commercial tenant. In some cases, the court may impose sanctions for willful violations of the automatic stay.

Monitor the case and gather pertinent documents when a commercial tenant files for bankruptcy

Carefully monitor a tenant’s bankruptcy case from the outset by reviewing all pleadings sent in connection with the case. Often, motions filed in the first days of a bankruptcy case set critical deadlines and tee-up for court approval mechanisms for funding the debtor through bankruptcy, including authority for the debtor’s use of assets (assets that may be subject to a landlord lien) during the course of the case. Pay special attention to the deadlines for filing proofs of claim and for filing proofs of rejection damages, each of which require affirmative landlord action to recover unpaid sums under the lease. Closely review any budgets filed by the tenant to confirm that the budget includes post-petition rent payments in the correct amounts. Consider retaining counsel to appear in the case, which will ensure that you receive prompt notice of events in the case and relevant deadlines.

Gather all documentation pertinent to the bankrupt tenant in order to readily assert claims in the bankruptcy case, including to support a motion for relief from the automatic stay if it becomes necessary. Ensure you have copies of the following:

• A fully executed copy of the lease, any amendments and guaranties
• Records of rent payments, both before and after the bankruptcy filing
• Records of maintenance obligations and payments
• Default correspondence
• Any property searches obtained showing liens created by the tenant

Disposition of the lease and payment of rent and other sums when a commercial tenant files for bankruptcy

Whether or not a commercial landlord desires to continue its business relationship with the bankrupt tenant, the bankruptcy code allows the debtor to exercise its business judgment to determine whether to assume (retain) or reject (terminate) an unexpired nonresidential lease.

If the tenant assumes the lease, it must make the landlord whole for any unpaid rent and any pecuniary losses stemming from the defaults under the lease. The tenant must also provide to the landlord “adequate assurance” of its future performance under the lease. With respect to shopping center leases, the bankrupt tenant must meet a higher standard than other tenants in order to assume the lease. The shopping center tenant must show: (a) that the debtor, as reorganized, or its assignee, will have at least the same ability to pay the rent as the initial lessee; (b) that any “percentage rent” will not substantially decline; (c) that the assumption of the lease will be subject to the all of the provisions of the lease, including provisions relating to radius, location and/or exclusivity; and (d) that the assumption thereof will not breach the provisions of any other lease, financing agreement or master agreement relating to the shopping center, nor disrupt the tenant mix in the shopping center.

If the tenant rejects the lease, it must return possession of the property to the landlord. Unlike the landlord to an assumed lease who is made whole upon assumption, the landlord to a rejected lease retains only: (a) an unsecured claim for unpaid pre-petition rent or other amounts; (b) an administrative (dollar-for-dollar) claim for unpaid post-petition rent; and (c) a rejection damages claim (unsecured) for future rent that would have been due but for the rejection. While the landlord is entitled to rejection damages, such damages are capped. Rejection damages are capped at the greater of one (1) year of rent or the rent for fifteen percent (15%), not to exceed three (3) years, of the remaining term of the lease. Rejection damages may be cut-off entirely if the landlord is able to re-lease the space for rent that will cover the claim.

Regardless of whether the tenant assumes or rejects the lease, tenants must pay post-petition rent. The bankruptcy code requires a tenant to comply with its obligations under a lease during the pendency of the case. If the tenant fails to comply with the lease terms, the landlord may have grounds for relief from the automatic stay to pursue eviction. Whether cause exists to grant relief from the automatic stay will depend on the particular circumstances of each case. For example, if the post-petition rent is not being paid, if insurance coverage does not remain in force or the property is in danger, a bankruptcy court may find cause for relief from the stay. On the other hand, if the tenant cannot continue its business without operating in the leased premises, a court may consider the property necessary for the tenant’s reorganization and be less likely to grant relief from the automatic stay. Experienced bankruptcy counsel can help assess the merits of any stay relief motion and should be consulted if the tenant fails to uphold any of its post-petition obligations under the lease.

PRE-BANKRUPTCY PLANNING: Hedging your risks when a commercial tenant files for bankruptcy

Landlords can hedge risks when a tenant files for bankruptcy by obtaining additional security to secure the lease,
which will maximize potential recovery in the event of a tenant bankruptcy.

Consider requiring a significant security deposit, including in the form of a letter of credit. Security deposits make a landlord a secured creditor to the extent of the deposit. In some cases, landlords can offset rent payments with a security deposit, which can enhance recovery to the landlord if the tenant ultimately rejects the lease.

Obtaining a third-party guaranty (from an individual or affiliate entity) of the tenant’s obligations under the lease affords a landlord with non-bankruptcy collection opportunities. In most cases, guarantors, unlike debtors, can be pursued for the full amount of the debt owing without respect to the cap on rejection damages that applies to a debtor.

In short, strong lease drafting coupled with vigilant enforcement of the landlord’s rights in and out of the bankruptcy court can make a significant difference in timely maximizing recovery from a defaulted tenant. The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

For More Information on what to do when a commercial tenant files for bankruptcy:

Julie M. Murphy, Esquire

Hyland Levin LLP
6000 Sagemore Drive, Suite 6301
Marlton, NJ 08053-3900
(p) 856.355.2900
(f) 856.355.2901
www.hylandlevin.com

A personal lease guaranty is a crucial feature of many commercial real estate leases. A lease guaranty is a separate contract under which a third party guarantor agrees to meet the obligations of the Tenant to the Landlord. Landlords understandably want to ensure that their Tenants – be they individuals or business entities – have the financial wherewithal to meet the obligations set forth in the lease. If a Tenant without sufficient assets breaches its lease by leaving early, refusing to pay rent, or damaging the space, the Landlord will not be able to recover its damages. The Landlord may have nothing to collect against. For this reason, if a Landlord is unsure about the creditworthiness of a potential Tenant, it will often demand that the Tenant provide a guaranty from an individual or entity who has sufficient assets to secure the Tenant’s obligations.

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A lease guaranty is a separate contract under which a third party guarantor agrees to meet the obligations of the Tenant to the Landlord. If the Tenant fails to pay rent, the Landlord can recover the arrears from the guarantor, usually before seeking damages from Tenant. Depending on the scope of the lease guarantee, the guarantor may also be financially responsible for damage to the lease premises caused by the Tenant. In the case of a Tenant entity (i.e. a corporation, limited liability company, or partnership), the guarantor is typically one of the entity’s principal individual owners or a corporate affiliate. In the case of individual Tenants, the guarantor is typically a family member or an investor.

In order to be enforceable, a lease guarantee should state the guarantors’ obligations in clear unambiguous language.

It should explicitly address which obligations the guarantor is securing, how and when can the Landlord collect from the guarantor, and whether there are monetary or temporal limitations to the guaranty. Any ambiguities will be construed in favor of the guarantor. The guaranty should also address the issue of consideration for the guaranty and make clear that the Landlord is entering into the lease in reliance on the guaranty. Finally, the guaranty should be signed by both Landlord and guarantor.

Many commercial Landlords insist upon a lease guaranty up front, but do not then consider how subsequent lease amendments, modifications, or renewals may affect the validity of the guaranty. This is a dangerous mistake. In certain states, a lease guaranty may be limited or even voided if the underlying lease is in any way modified without the guarantor’s express consent.

New Jersey courts take a more nuanced approach to this issue. In New Jersey, a lease guaranty will only be limited or discharged if the lease is subsequently modified in a way that injures the guarantor or actually increases the guarantor’s risk or liability. See Center 48 Ltd. Partnership v. May Dept. Stores Co., 355 N.J. Super 390, (App. Div. 2002). Unfortunately, New Jersey courts have not provided much guidance on what sort of lease modifications actually increase the guarantor’s risk or liability.

Nonetheless, Landlords in New Jersey can take two steps to limit the chances that a lease guaranty will be limited or voided if the underlying lease is subsequently changed. First, the Landlord can include clear language in the lease guaranty stating that the guarantor’s obligations will extend to any increase in rent, extension of the lease term, renewal, or other modification of the lease. The broader and more specific the language the better for the Landlord. The lease guaranty should also explicitly waive the guarantor’s right to consent to such modifications. A second and more effective approach is for the Landlord to require the guarantor to provide a written acknowledgment and consent each time the lease is amended, modified, or renewed.

Lease guarantees provide crucial credit support to commercial Landlords. In order to ensure that a guaranty is enforceable, however, a Landlord must use a carefully drafted form. Simply getting a well drafted lease guaranty executed, however, is not the end of the story. A Landlord must also consider how subsequent lease amendments may affect the enforceability of the lease guaranty and work proactively to ensure that the lease guaranty remains in effect, especially when it comes time to enforce it.

The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

When it comes to the federal income tax treatment of real estate sales it is very important how you treat your real estate gains and losses. If you are a real estate owner or developer, you may be under the impression that your profits and losses from the sale of property must be treated as ordinary income or losses, and that you are therefore subject to federal income tax rates that can be as high as 39.6%. However, it is possible that profits you have received from the sale of property may instead be treated as capital gains, which are generally taxed at a maximum rate of only 20% for noncorporate taxpayers.

Under Section 1221(a)(1) of the Internal Revenue Code (the “Code”), income or losses from the sale of property “held primarily for sale to customers in the ordinary course of a taxpayer’s trade or business” are treated as ordinary. Any income or losses from the sale of property outside this classification are treated as capital gains or losses.

Determining whether the sale of property qualifies as the sale of a capital asset first requires an analysis of whether the property was held “primarily” for sale. This is not necessarily as straightforward as it may seem, since property can be used for more than one purpose. In addition, taxpayers may change their purpose for holding property during their term of ownership. For example, you may own an apartment building that you later decide to convert to condominiums; or, you may own and rent several properties and later decide to sell a handful of them over a period of a few years. How do these decisions affect the federal income tax treatment of real estate sales and reporting your gains and losses?

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Case law surrounding the federal tax treatment of real estate sales

The U.S. Supreme Court provided some guidance in its decision in Malat v. Ridell, 383 U.S. 569 (1966). There, the taxpayer was a member of a joint venture that purchased real estate to develop and operate an apartment complex. When the joint venture members had trouble obtaining financing, a portion of the property was subdivided and sold, and the profit from the sales was reported and taxed as ordinary income. The members continued to have difficulties developing the remaining parcels, and the taxpayer sold his interest in the joint venture and treated his profit from that sale as a capital gain. The IRS contended that the property was held by the taxpayer “primarily for sale to customers in the ordinary course of his trade or business,” and that, therefore, the profits should be taxed as ordinary income.

The Federal District Court and the Court of Appeals agreed with the IRS position, but the U.S. Supreme Court disagreed. The Supreme Court held that purpose of Section 1221 of the Code is to distinguish between “profits and losses arising from the everyday operation of a business” and “the realization of appreciation in value accrued over a substantial period of time”, and that, based on this purpose, the word “primarily” as used in Section 1221 means “of first importance” or “principally”. The case was remanded to the District Court to decide the case using the legal standard articulated by the Supreme Court. The District Court found that the properties were not held primarily for sale to customers in the ordinary course of a trade or business, and that the taxpayer (and the other members of the joint venture) could report their profits as capital gains. See Malat v. Riddell, 275 F. Supp. 358 (1966).

While the U.S. Supreme Court’s decision in Malat v. Riddell is helpful in applying Section 1221, it is important to note that holding property primarily for sale “is by itself insufficient to disqualify the taxpayer from capital gains privileges”. See U.S. v. Winthrop, 417 F.2d 905 at 911 (5th Cir. 1969). The Courts have identified three main questions to consider when determining whether an asset is a “capital asset” under the Code:

1. Was the taxpayer engaged in a trade or business, and if so, what business?
2. Was the taxpayer holding the property primarily for sale in that business?
3. Were the sales contemplated by the taxpayer “ordinary” in the course of that business?

Suburban Realty Co. v. U.S., 615 F.2d 171 at 178 (5th Cir.), cert. denied, 449 U.S. 920 (1980).
In addition, the Courts have articulated and applied a series of factors to determine whether a sale occurred in the ordinary course of a trade or business:

1. What is the nature and purpose of the acquisition of the property and the duration of the ownership?
2. What is the extent and nature of a taxpayer’s efforts to sell the property?
3. What is the number, extent, continuity, and substantiality of the sales?
4. What is the extent of subdividing, developing, and advertising to increase sales?
5. Was a business office used for the sale of the property?
6. What is the character and degree of supervision or control exercised by the taxpayer over a representative selling the property?
7. How much time and effort did the taxpayer habitually devote to the sales?

See U.S. v. Winthrop, 417 F.2d 905 at 910 (citing Smith v. Dunn, 224 F.2d 353, 356 (5th Cir. 1955)); See
also Byram v. U.S., 705 F.2d 1418, 1424 (5th Cir. 1983).

In applying these factors, Courts have emphasized that no single factor should be determinative in deciding the federal tax treatment of real estate sales; instead, each case must be evaluated on its own facts. Biedenharn Realty Co., Inc. v. U.S., 526 F.2d 409 (5th Cir. 1976), cert. denied, 429 U.S. 819 (1976).

Based on the foregoing, if you are a real estate owner or developer, and you are making decisions regarding your property, the tax treatment of real estate gains and losses will depend on an analysis of your individual facts and circumstances under Section 1221 of the Code and related Court opinions and IRS decisions. Thus, it is important to consult with your tax advisor to review your sales activities, as it could positively impact your federal income tax liability.

The United States Treasury Department issues Circular 230, which governs all practitioners before the Internal Revenue Service. Circular 230 requires a legend to be placed on certain written communications that are not otherwise comprehensive tax opinions. To ensure compliance with Treasury Department Circular 230, we are required to inform you that this document is not intended or written to be used, and cannot be used for the purpose of avoiding penalties that the Internal Revenue Service might seek to impose on you.

Have more questions about the federal tax treatment of real estate sales?

Contact:

Stephen M. Geria, Esquire, LL.M.
Hyland Levin LLP, Attorneys at Law
6000 Sagemore Drive, Suite 6301
Marlton, NJ 08053

Phone: 856.355.2900