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    No tenure for tenants of liquidated landlords
    2013-12-05

    The High Court has ruled that liquidators of lessors can disclaim leases, thus terminating the leasehold interests of tenants.

    However, yesterday's High Court decision in Willmott Growers Group Inc. v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51 leaves open another issue: do liquidators need to get Court approval before exercising this power, and, if so, how easy or difficult would it be to get that approval?

    Key Points

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz, Landlord, Leasehold estate, Liquidation, Liquidator (law)
    Authors:
    Karen O'Flynn
    Location:
    Australia
    Firm:
    Clayton Utz
    A liquidator's disclaimer of a lease extinguishes a tenant's leasehold interest
    2012-10-25

    Key Points:

    The decision will give liquidators the certainty of knowing that disclaimer of a lease means that a tenant no longer has any interest in the land.

    A recent decision of the Victorian Court of Appeal has confirmed that a liquidator of a landlord can disclaim a lease with full effect, so that the land is no longer encumbered by a tenant's interest.

    Filed under:
    Australia, Victoria, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz, Leasehold estate, Interest, Liquidation, Victoria Supreme Court
    Authors:
    Scott Sharry , Laura Hawes
    Location:
    Australia
    Firm:
    Clayton Utz
    Landlord victory as CVA fails to release guarantee
    2010-11-05

    The High Court has struck down a company voluntary arrangement on the ground that it unfairly prejudiced a landlord who was to lose the benefit of a guarantee given by the tenant’s parent company. The judge said it was “unreasonable and unfair in principle” to require the landlord to give up the guarantee and there was “no sufficient justification” for requiring the landlord to accept a sum of money in lieu.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Real Estate, Dechert LLP, Retail, Surety, Landlord, Leasehold estate, Electricity, Liquidation, Prejudice, Parent company, High Court of Justice, Trustee
    Location:
    United Kingdom
    Firm:
    Dechert LLP
    Surrender releases obligation to reinstate
    2012-10-26

    When a tenant goes into liquidation and its liquidator surrenders the lease what effect does this have on any obligations to remove any alterations that the tenant has made during the term and generally reinstate?  The high court has recently decided that the terms of a surrender that released both parties from rights arising “on or after, but not before, the date of this surrender” were sufficient to release the tenant from its obligations to reinstate the premises because these obligations were future obligations.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Real Estate, CMS Cameron McKenna Nabarro Olswang LLP, Landlord, Leasehold estate, Liquidation
    Location:
    United Kingdom
    Firm:
    CMS Cameron McKenna Nabarro Olswang LLP
    Landlord avoids Bankruptcy Code's limitation on lease termination damages
    2007-11-14

    The Bankruptcy Code limits the amount a landlord may recover from a bankrupt tenant for damages caused by the termination of a lease of real property. But what if the tenant trashes the landlord's property before turning over the premises? Does the damage limitation apply to the landlord's claim for the cost of cleaning up the mess?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, White & Case LLP, Bankruptcy, Collateral (finance), Breach of contract, Landlord, Leasehold estate, Statute of limitations, Remand (court procedure), Causation (law), Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    White & Case LLP
    Continued viability of “earmarking doctrine” defense to preference actions affirmed by Fifth Circuit
    2009-01-30

    In In re Entringer Bakeries, Inc.,1 the United States Court of Appeals for the Fifth Circuit affirmed the viability of the “earmarking doctrine” as a judicially-created defense to a preference action under section 547(b) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Collateral (finance), Leasehold estate, Interest, Debt, Maturity (finance), Liquidation, Secured loan, Title 11 of the US Code, Small Business Administration (USA), SCOTUS, United States bankruptcy court, Fifth Circuit, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    How to negotiate an exclusive use provision
    2015-12-07

    Both landlords and tenants are well served to begin discussing exclusives early in the lease negotiations.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Landlord, Leasehold estate
    Location:
    USA
    Firm:
    Troutman Pepper
    Rent as administrative expense: can a “terminated” lease also be “unexpired”?
    2012-12-18

    Super Nova 330 LLC v. Gazes, 693 F.3d 138 (2d Cir. 2012) –

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Bankruptcy, Landlord, Leasehold estate, Vacated judgment, Remand (court procedure), Second Circuit
    Location:
    USA
    Firm:
    Troutman Pepper
    Lease assumption: what if the store has gone “dark”?
    2012-09-04

    Androse Assoc. of Allaire, LLC v. Great Atlantic & Pacific Tea Co. (In re Great Atlantic & Pacific Tea Co.), 472 B.R. 666 (S.D.N.Y. 2012) –

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Debtor, Landlord, Leasehold estate
    Location:
    USA
    Firm:
    Troutman Pepper
    Finance litigation briefing: report and review on the latest cases and issues
    2012-10-17

    Notice of assignment

    Notice of assignment can be given by either the assignee or assignor under the Consumer Credit Act 1974 (CCA).

    This was the High Court's finding in Smith v 1st Credit (Finance) Ltd and another. Smith was notified by her credit card company that her credit card debt had been assigned to 1st Credit. 1st Credit wrote to Smith shortly afterwards confirming the assignment and advising how payment could be made. Smith failed to pay and was made bankrupt by 1st Credit which subsequently repossessed and sold Smith's property.

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Leasehold estate, Consumer Credit Act 1974 (UK)
    Authors:
    Ian Weatherall , Greg Standing
    Location:
    United Kingdom
    Firm:
    Gowling WLG

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