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Commercial Landlords Tilt the Playing Field Against Tenants under New Bankruptcy Law

By James A. Vidmar, Jr. and Jennifer D. Larkin

The changes in the coming bankruptcy law (effective Oct. 17, 2005) are certain to be welcomed by commercial landlords who are given new advantages when tenants file for bankruptcy. Landlords will have new ammunition to control the disposition of premises and to ensure prompt performance of lease obligations. The new law already has landlords and tenants rethinking their strategies, both in the leasing stage and post-bankruptcy. Because the law is subject to significant uncertainty in its interpretation and function, however, only time will tell how the changes play out.

Perhaps the most significant commercial leasing changes in the law involve timing of actions, the ability to assume leases that are in nonmonetary default, and the application of restrictive use clauses, or what are often called anti-assignment provisions.

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