Foreword

• Jurisdiction: United States

The American Bankruptcy Institute (ABI) last published a book on this topic as the second edition of Bankruptcy Issues for Commercial Landlords, Tenants and Mortgagees in 2008. During the decade since then, several important and critical changes have deeply altered the landscape and "culture" of both retail bankruptcy and, by extension, the relationship between commercial landlords and tenants. A new edition, and a new title, seem entirely appropriate.

First, in 2005, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which provided for an extensive review, study and revision of both business and consumer provisions of the Bankruptcy Code. BAPCPA has become well examined, and the case law on several key issues is reasonably well developed. Retail and Office Bankruptcy: Landlord/Tenant Rights reflects many of those changes and deletes some of the earlier discussion on pre-BAPCPA law that no longer has any application.

A second major event was the publication by ABI of the Final Report of the ABI Commission to Study the Reform of Chapter 11 (ABI 2014, with Michelle Harner serving as reporter; hereinafter the "ABI Report"). The ABI Report was the result of an in-depth three-year study by a group of highly respected commissioners from throughout the country, numerous public meetings, and the work of various advisory committees, each of which was assigned to a particular aspect of modern bankruptcy law. One such advisory committee examined the relationship between landlords and tenants in bankruptcy. The ABI Report gave serious consideration to many of the issues involving landlords and tenants in major retail cases. Several of these recommendations are included in Retail and Office Bankruptcy: Landlord/Tenant Rights. The ABI Report also examined how BAPCPA has changed the pace and outcome of retail bankruptcy cases. For example, BAPCPA shortened the time that a debtor has to decide whether to assume or reject its lease to 210 days. This change dramatically shortened the length of a typical retail bankruptcy case and, according to some commentators, altered the fundamental leverage between landlords and tenants in a retail bankruptcy case. The ABI Report concluded that "[e]mpirical and anecdotal evidence since 2005 suggests that this change in a debtor in possession's time to assume or assign nonresidential real property leases is at least a contributing factor to both the decline in retail filings and the results...