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Nonresidential Lease that trustee fails to assume or =
After re-reading 365(c)(4)(A) it still seems to me that the tenant automatically receives back his leasehold if the trustee does not assume or reject within 120 days after the date for the order of relief. It states: (4)(A) Subject to subparagraph (B) (Court can extend 120 day rule), an unexpired lease of a nonresidential real property under which the debtor is the leas see shall be deemed rejected, and the trustee shall immediately surrender that nonresidential real property to the lessor, if the trustee does not assume or reject the unexpired lease by the earlier of - (i) the date that is 120 days after the date of the order for relief; or (ii) the date of entry of an order confirming a plan...
(This is a Chapter 7)
So, unless there is some ritual missed with regard to "surrender", how does the landlord now get to modify lease to a month to month? Based on public policy, it seems to fly in the face of the ispo facto clause under 365(e)(2), which protects the tenant from landlords from same actions?
Thoughts?
Thanks,
Stephen M. Stern, Esq.
Law Office of Stephen M. Stern, PC
1026 Palm Street, Suite 215
San Luis Obispo, CA 93401
805.215.0295
________________________________
To: cdcbaa@yahoogroups.com
Sent: Monday, April 1, 2013 7:35 PM
Subject: Re: [cdcbaa] Nonresidential Lease that trustee fails to assume or reject within 120 period
I don't think there is a way around it. As you are now aware, the 365(4)(a) requires the lessee debtor to "immediately surrender" the nonresidential real property to the lessor if the lease is not assumed within 120 days of the order for relief. If the landlord is agreeable to a month-to-month lease then that is good for your client.
Although, the Code says "immediately surrender" I believe (but no cites to share) that this means the landlord could file an unlawful detainer motion without further notice. I don't believe, under California law, the lessee could be forcibly evicted without a UD judgment.
Link Schrader, Attorney
Law Office of Link W. Schrader
Mail: P.O. Box 3723, Tustin, CA 92781
Office: 106 W. 4th Street, Suite #308, Santa Ana, CA
92701
Office: (714) 542-5922; Mobile/Text: (310) 413-6924
San Diego: (619) 952-8342; Fax: (310) 878-4158
www.schrader-law.com
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