Updated: Oct 5, 2021
(For other detailed discussions on chapter 11 procedure, common issues and more, be sure to read Wartchow Law’s Chapter 11 Blog.)
As for many issues in bankruptcy, whether filing bankruptcy can stop an eviction under a commercial lease depends on several factors, including the precise legal status of the lease as of the file date of the Chapter 11 bankruptcy case–has the lease been lawfully terminated or expired, or is it simply in default–and the legal steps taken by the landlord pursuant to the Minnesota eviction process before the bankruptcy is filed. The ideal chapter 11 scenario to stop a commercial eviction (or residential eviction for that matter) is to file a bankruptcy petition before the lease is terminated or expired either under the law or under the terms of the lease and also before a judgment of possession is ordered by district court. If these two factors are present, the lease can still be cured in a chapter 11 and, even if the debtor decides not to keep the lease, at least the debtor will have significantly more time to vacate the premise and relocate under a more favorable lease.
In Minnesota, the eviction process is typically an expedited proceeding, meaning that once a commercial landlord petitions the district court for eviction—usually for non-payment of rent or other default by the tenant—relief in the form of eviction can be ordered in a matter of weeks. The key to bankruptcy stalling an eviction proceeding is timing: ideally the bankruptcy should be filed before a judgment of possession is entered in a commercial eviction proceeding.
The very first matter that must be considered is the legal status of the lease, since this will greatly impact the debtor’s rights regarding the lease and, accordingly, also the length of time that the chapter 11 debtor can continue to use the premises. If the lease is expired or otherwise has terminated prior to the bankruptcy filing–or if the landlord has obtained a judgment for possession–eviction may only be stalled for a short period of time, perhaps as little as a week or two. Even though chapter 11 provides a new platform for potential lease re-negotiations, it cannot resurrect a lease that is no longer valid under the law without the cooperation of the lessor. Put another way, while eviction proceedings will be stayed by the filing of chapter 11 (or any form of bankruptcy for that matter), it will not breathe new life into a lease that was already dead (terminated or expired) before the bankruptcy was filed. Even if the lease is expired or terminated, a well-advised landlord will still first go through the bankruptcy court before continuing with the eviction, however even this initial procedure in bankruptcy court can be expedited to a matter of a week or two. in contrast if the lease is not yet terminated or expired, the landlord faces a longer process in the bankruptcy court because the debtor has an unequivocal right to cure and assume (i.e., “make good”) on the defaulted lease so long as the debtor can evidence its practical and financial ability to do so. Whether a particular lease has terminated or expired will depend on the terms of the lease and/or if the landlord has taken the requisite steps to terminate the lease prior to the filing of bankruptcy. Often this “lease termination” step is missed in the course of an eviction proceeding, thus a business on the doorstep of eviction may still have an opportunity to make good on their lease and, unlike many state laws, chapter 11 will affords the necessary time and legal process to cure a defaulted lease.
Assuming the lease is not terminated or expired and even though the tenant is in default, chapter 11 provides a temporary respite from eviction process during which time the tenant must have a plan to cure any defaults in order to continue under the lease. A qualified Chapter 11 attorney can advise a commercial tenant (i.e., the prospective debtor) of the cure period afforded in a Chapter 11 filing, their rights in bankruptcy to stop the eviction and reorganize debts as well as the timeline and costs expected regarding the options to either assume or reject the troubled lease.
For more detailed information about chapter 11 and commercial leases, see also Commercial Leases and Chapter 11 Reorganization: The Requirements and Timelines under the Bankruptcy Code.
For other issues typically involved with chapter 11, keep reading to Recognize the Circumstances that Often Lead to Chapter 11 including Sales Tax Obligations in Chapter 11.
Located in Edina, Minnesota, Wartchow Law Office is a Chapter 11 law firm providing Chapter 11 consultations to review the business lease and other liabilities affecting a Chapter 11 bankruptcy proceeding. Chapter 11 is also available to individual Chapter 11 debtors having unique circumstances.