# In Re Moore

> United States Bankruptcy Court, N.D. Alabama · March 25, 2003 · 290 B.R. 851

URL: https://www.frixlaw.com/law-library/cases/1525993

## Case

- **Full name:** In the Matter of Erica Denise MOORE, Debtor. in the Matter of Maxine M. Daniels, Debtor
- **Court:** United States Bankruptcy Court, N.D. Alabama
- **Decided:** March 25, 2003
- **Citations:** 290 B.R. 851; 2003 Bankr. LEXIS 239; 2003 WL 1563685
- **Precedential status:** Published
- **Opinion:** Opinion by Bennett
- **Judges:** Thomas B. Bennett
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1525993

## Opinion text

MEMORANDUM OPINION
THOMAS B. BENNETT, Bankruptcy Judge.
I.
The Universe
Modification of the automatic stay of § 362(a) of the Bankruptcy Code, 11 U.S.C. § 862 (a), with respect to two residential leases of real property, and each’s assumability under § 365 of the Bankruptcy Code, 11 U.S.C. § 365 , are subsets of the universe of facts and legal challenges raised in different Chapter 13 cases. One of the Chapter 13 cases involving one of the leases is that of Erica Denise Moore (hereinafter sometimes “Moore”). The other is that of Maxine M. Daniels (hereinafter sometimes “Daniels”). Also at issue is which of differing interpretations is proper, one which is federalists in approach or another which is centralists, for ascertaining whether a lease of residential real property ended under state law pre-bankruptcy is property of the estate under §§ 541(a) & 1306(a) of the Bankruptcy Code, 11 U.S.C. §§ 541 (a) & 1306(a), which may be assumed under § 365(a) & (d) of the Bankruptcy Code, 11 U.S.C. § 365 (a) & (d). The federalists methodology looks to state law to ascertain what interests in property exist at the time of the commencement of a bankruptcy case. Then, whether property of the estate exists or not under 11 U.S.C. §§ 541 (a) & 1306(a) is governed by these Bankruptcy Code sections. In contrast to this method of locating the existence of property of the estate, the centralists approach utilizes (i) variations of a statutory maxim,
expressio uni-us est exclusio alterius,
and a linguistic interpretative device, the plain meaning rule, coupled with (ii) interpretation of one or more of two non-property of the estate subsections of the Bankruptcy Code, 11 U.S.C. §§ 362 (d)(10) & 365(c)(3), and one property of the estate excluding subpart of the Bankruptcy Code, 11 U.S.C. § 541 (b)(2), and (iii) an analogy to a generalized rule for when a mortgagor loses the right to cure a default to conclude that a residential lease of real property terminated under state law before one’s bankruptcy case is filed is property of the estate in a consumer-debtor’s bankruptcy case. Essentially, the centralista: view for how one finds the existence of a residential lease of real property within 11 U.S.C. §§ 541 (a) & 1306(a) is use of the Bankruptcy Code to modify in some cases the state law based determination of what property interests one possessed at the point when a bankruptcy case is started.
In both the Daniels and Moore cases, the pivotal legal issue is the existence or not of a residential lease of real property. What is not before this Court in either the Daniels or Moore matters is their continued entitlement to participate in the government rent subsidy program utilized to pay each’s rent to a non-governmental entity, Farrington Apartments.
II.
The Landscape
Under the provisions of Title 24 of the Code of Federal Regulations, 24 C.F.R. §§ 880 — 891 (2001), the United States Department of Housing and Urban Development (hereinafter sometimes “HUD”) pays subsidies, referred to as rent assistance, to landlords for qualified low income tenants who otherwise could not pay the full amount of the rent for a residential prop
*855
erty.
1
In each of the cases before this Court, a privately owned apartment is the rented residential property. Under HUD’s regulations, the landlord of such privately owned properties is required to determine the income of the rent assisted tenant. It is the income level, among other factors, which is used to determine the portion of the rent to be paid by the tenant and the part subsidized by the United States. Farrington Apartments, the landlord in both cases, has just this type of subsidized rental arrangement with HUD regarding two of its tenants, Daniels and Moore.
One source for a landlord participating in HUD’s assisted rent program, indeed the primary one in many cases, for obtaining income information regarding a tenant is from the tenant. It is the reliability of the source — rather, the lack thereof— which is a major, contributing cause of the landlord-tenant disputes involving Farring-ton Apartments, Daniels, and Moore.
A.
Daniels’s Premises
On June 21, 2001, Maxine M. Daniels filed her bankruptcy petition under Chapter 13 of the Bankruptcy Code, 11 U.S.C. §§ 1301
et seq.
Ms. Daniels has been a recipient of housing assistance under Section 8 of Title 24 of the Code of Federal Regulations, 24 C.F.R. § 882 (2001). She leased an apartment from Farrington Apartments for an initial period of one year commencing on August 1, 1997, and ending August 1, 1998. Unless terminated, the lease is automatically extended for successive terms of one year.
Based on what Maxine Daniels reported her income to be, the United States paid one hundred percent (100%) of her rent plus additional monies in the form of a monthly utility allowance. After commencement of her tenancy, Farrington Apartments discovered that Ms. Daniels had not accurately reported her income. It was greater than she disclosed.
Under the terms of the lease, Farring-ton Apartments is permitted to increase the portion of the rent paid by Ms. Daniels should her income increase or be greater than disclosed. The portion she could be required to pay is up to the full amount of the HUD approved market rate of rent. Despite her obligation to timely disclose the true amount of her income, Ms. Daniels did not. For the time during which she was not entitled to the amount of the subsidy received, Farrington Apartments recalculated the rent to be paid by Ms. Daniels and notified her that she owed rent retroactively for the period from March 1, 1999, through February, 2001, (“Retroactive Rent”) based on newly discovered information which revealed the correct amount of her income for this period.
The Retroactive Rent was not paid. As a result, on April 3, 2001, Ms. Daniels received written notification that both the lease with Farrington Apartments and her tenancy rights thereunder were terminated for failure to pay the Retroactive Rent. The notice sets forth that the lease and the tenancy terminate ten days from its receipt and that the termination was based on her default in payment of rent. Although it does not specify that it is Retroactive Rent, this fact was known to Daniels and so was the fact that her not having previously paid any rent meant that the notice could only refer to the Retroactive Rent.
2
The notice also contains information
*856
required under the terms of the lease and HUD’s regulations including her right to request and meet with representatives of Farrington Apartments before the effective date of the ending of the lease. So long as done according to the terms of the lease, which incorporates compliance with state law and HUD regulations, the ending of her lease and tenancy rights thereunder was effective on April 13, 2001. The Daniels-Farrington Apartments lease does not by any contract provision allow its reinstatement after termination by payment of accrued, unpaid rent.
Because Ms. Daniels remained in the apartment, Farrington Apartments filed an unlawful detainer action against her in the Circuit Court of Jefferson County, Alabama. After the date of termination of the lease and Ms. Daniels’s tenancy and before entry of a final judgment in the unlawful detainer action, Ms. Daniels filed her Chapter 13 case. What she seeks and believes she can do through the bankruptcy process is forestall — indeed preclude— the effective termination of her lease, the loss of her asserted tenancy rights, and the ending of her presence in the apartment. She has also sought to assume the lease under § 365(a) & (d) of the Bankruptcy Code, 11 U.S.C. § 365 (a) & (d). Farring-ton Apartments’ rejoinder to this is its motion requesting relief from the automatic stay under § 362(d) of the Bankruptcy Code, 11 U.S.C. § 362 (d), to enable it to go forward with the unlawful detainer suit in which it seeks her removal from the apartment by judicial process. Its stay modification motion is predicated on the assertion that the lease, Ms. Daniels’s tenancy and her possessory rights arising under the lease — which are to be distinguished from her mere presence in and on the premises
3
— were ended before her bankruptcy filing.
B.
Moore’s Premises
On July 5, 2001, Ms. Daniels’s daughter, Erica Denise Moore, started her bankruptcy case under the provisions of Chapter 13 of the Bankruptcy Code, 11 U.S.C. §§ 1301
et seq.
Ms. Moore leased an apartment from Farrington Apartments employing the identical form of lease as that in the Daniels — Farrington Apartments transaction. The initial term of the lease was from March 1, 1997, to March 1, 1998. Unless terminated, the lease is automatically extended for successive terms of one year.
Just like her mother, Ms. Daniels received housing assistance through HUD’s program under section 8 of Title 24 of the Code of Federal Regulations, 24 C.F.R. § 882 (2001). Based on her reported income, the United States paid all the rent for Ms. Moore’s apartment and also paid her a monthly utility allowance. Identical to what Ms. Daniels had done, Farrington
*857
Apartments discovered that Ms. Moore had not reported the full amount of her income for portions of the time she received government rental assistance. Therefore and pursuant to the provisions of the lease, Farrington Apartments exercised its right to increase Ms. Moore’s rent for the periods during which Ms. Moore inaccurately reported her income. The outcome was that Ms. Moore was required to pay Retroactive Rent for the period of July 1, 2000, through February, 2001.
She did not pay the Retroactive Rent and on April 3, 2001, she was tendered notice that her lease was terminated. It disclosed that the effective date of termination of her lease and tenancy would be ten days from receipt of the notice. This meant that, if done according to the lease provision and applicable laws and HUD regulations, on April 13, 2001, her lease and tenancy rights thereunder were ended. The notice of termination also sets forth that the reason for termination was her default in payment of rent. It does not specifically identify the unpaid rent as being the Retroactive Rent. However and similar to the facts involving Daniels, Moore knew that the notice referred to the Retroactive Rent for, among other factors, she had not paid rent in the past and was aware of the recalculation of rent following discovery of her correct income. As that given Ms. Daniels, the notice of termination also contained the disclosures required by the lease and HUD’s regulations such as Ms. Moore’s right to meet with the landlord regarding the basis for termination and her right to institute legal proceedings. Additionally and unlike some residential leases, Moore’s does not contain a contract provision allowing reinstatement of the lease following termination on the post-termination payment of accrued, unpaid rent and its acceptance by the landlord.
Exactly as her mother had done, Ms. Moore did not vacate her apartment by the April 13, 2001, ending date of the lease and her tenancy rights. This resulted in Far-rington Apartments filing an unlawful de-tainer action against Ms. Moore in the Circuit Court of Jefferson County, Alabama.
Before entry of a final judgment in the unlawful detainer action, Ms. Moore filed her bankruptcy petition. Again and as with Ms. Daniels, the primary purpose of commencing her bankruptcy case has been to enable Ms. Moore to retain the apartment by attempting to assume the lease under § 365(a) & (d) of the Bankruptcy Code, 11 U.S.C. § 365 (a)
&
(d), in conjunction with her hoped to be confirmed Chapter 13 plan. As it did with Ms. Daniels, Farrington Apartments has responded to Ms. Moore’s bankruptcy tactic by seeking modification of the automatic stay imposed under § 362(a) of the Bankruptcy Code, 11 U.S.C. § 362 (a), to enable it to have Ms. Moore removed from the apartment via the state court unlawful detainer process. Farrington Apartments argues that Ms. Moore’s landlord-tenant relationship with it and any lawful tenancy in and right of possession of the apartment were no longer in existence as of the filing of her bankruptcy case.
As is evident, the identical legal issues are presented to this Court with respect to each of the stay modification motions filed by Farrington Apartments and Ms. Daniels’s and Ms. Moore’s responses to the respectively applicable motion. Also, no material or relevant fact differences exist between the cases of Ms. Daniels and Ms. Moore. It is due to the sameness of the legal issues and of the relevant and material facts that this Court addresses in this opinion each of Farrington Apartments’ motions and the Daniels-Moore rejoinders.
*858
III.
Legal Terrain
— Overview
A.
Property of the Estate
— National
in Approach, Yet Federalism Incorporated
(1)
The Set Denominated Property of the Estate
(a)
Statutes
Under § 1306(a) of the Bankruptcy Code, 11 U.S.C. § 1306 (a), property of a debtor’s Chapter 13 estate is defined to include property interests a debtor holds at the time his/her case is filed, accretions and proceeds from such property after the fifing of the bankruptcy case plus certain post-petition acquired property. Its wording is:
(a) Property of the estate includes, in addition to the property specified in section 541 of this title
(1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first; and
(2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first.
11 U.S.C. § 1306 (a). Much the same as § 1306(a), 11 U.S.C. § 541 (a) delineates property within the perimeters of “property of the estate.” Included within the set denominated “property of the estate” are interests existing as of fifing a debtor’s case, 11 U.S.C. § 541 (a)(1)
&
(2), those recovered by or preserved for the estate, 11 U.S.C. § 541 (a)(3) & (4), others acquired after fifing of the bankruptcy case, 11 U.S.C. § 541 (a)(5)
&
(7), and property received after filing which has as its sources property of the estate, 11 U.S.C. § 541 (a)(6). Section 541(b) fists interests categorized as outside § 541(a)’s set’s perimeters, and § 541(c)(2)
&
(d) detail limitations on the extent to which certain interests are within the set of “property of the estate.” 11 U.S.C. § 541 (c)(2)
&
(d).
In the context of these Moore-Daniels-Farrington Apartments matters, the consequence of § 1306(a)’s language, coupled with that of 11 U.S.C. § 541 , is that 11 U.S.C. § 541 (a) is the operative subpart of the “property of the estate” section for determining the interests in property of Moore and Daniels which became property of each’s bankruptcy estate as of each’s respective filing of a bankruptcy case. What is set forth is this:
(a) The commencement of a case under section 301, 302, 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.
11 U.S.C. § 541 (a)(1).
(b)
Nonuniform
Uniformity—
Constitution, Case Law & Federalistic Structure
Although under the Uniformity Clause of Art. I, § 8 of the Constitution, laws on bankruptcy including the Bankruptcy Code, 11 U.S.C. §§ 101
et seq.,
are to be uniform, Congress is permitted in certain instances to recognize differing laws of the various states even though this may not lead to identical outcomes in bankruptcy cases arising in the different subjurisdic-tions comprising the United States. While discussing the Bankruptcy Act, the Supreme Court espoused just when the uni
*859
formity requirement for bankruptcy laws mandates a centralistic application — one with unvarying nationwide application— and when a federalistic structure is permitted, i.e., one where state laws are used to determine, at least in part, that which the national law governs:
The Federal Constitution, Article I, § 8, gives Congress the power to establish uniform laws on the subject of bankruptcy throughout the United States. In view of this grant of authority to the Congress it has been settled from an early date that state laws to the extent that they conflict with the laws of Congress, enacted under its constitutional authority, on the subject of bankruptcies are suspended. While this is true, state laws are thus suspended only to the extent of actual conflict with the system provided by the Bankruptcy Act of Congress.
Sturges v. Crowninshield,
4 Wheat. 122 , 4 L.Ed. 529 [(1819)];
Ogden v. Saunders,
12 Wheat. 213 , 6 L.Ed. 606 [(1827)].
Notwithstanding this requirement as to uniformity the bankruptcy acts of Congress may recognize the laws of the state in certain particulars, although such recognition may lead to different results in different States. For example, the Bankruptcy Act recognizes and enforces the laws of the states affecting dower, exemptions, the validity of mortgages, priorities of payment and the like. Such recognition in the application of state laws does not affect the constitutionality of the Bankruptcy Act, although in these particulars the operation of the act is not alike in all the states.
Stellwagen v. Clum,
245 U.S. 605, 613 , 38 S.Ct. 215, 217 , 62 L.Ed. 507 [(1918)].
Butner v. U.S.,
440 U.S. 48 , 54 n. 9, 99 S.Ct. 914 , 917-918 n. 9, 59 L.Ed.2d 136 , 141 n. 9 (1979). One area where this use of different state laws for national bankruptcy law purposes has occurred is in determining what is property of the estate under § 541 of the Bankruptcy Code, 11 U.S.C. § 541 . See, e.g.,
Barnhill v. Johnson,
503 U.S. 393, 398 , 112 S.Ct. 1386, 1389 , 118 L.Ed.2d 39, 46 (1992);
Butner,
440 U.S. at 54 -55 & n. 9, 99 S.Ct. at 917 -918 & n. 9, 59 L.Ed.2d at 141 -142 & n. 9.
As part of fathoming what is property of the estate, courts have fashioned guiding precepts. Section 541(a)(l)’s “all legal and equitable interests of the debtor in property as of the commencement of the case” is broadly construed.
United States v. Whiting Pools, Inc.,
462 U.S. 198, 204-05 , 103 S.Ct. 2309, 2313 , 76 L.Ed.2d 515, 521-22 (1983);
In re Thomas,
883 F.2d 991 , 995 (11th Cir.1989).
4
Along with this standard there are correlative principles for determining property of the estate. One is that § 541(a) does not expand the property interests of a debtor beyond those held at the moment a bankruptcy case is started. See, e.g.,
Thomas,
883 F.2d at 995;
In re Jones,
768 F.2d 923, 927 (7th Cir.1985);
Moody v. Amoco Oil Co.,
734 F.2d 1200, 1213 (7th Cir.1984). Another is what is property of the estate for purposes of bankruptcy laws — in these Moore-Daniels cases the Bankruptcy Code — is a question of federal law while what property interest Moore and Daniels possessed at the commencement of a bank-
*860
ruptcy case are, absent a controlling federal law to the contrary, created and defined by state law.
Barnhill,
503 U.S. at 398 , 112 S.Ct. at 1389 , 118 L.Ed.2d at 46 (“In the absence of any controlling federal law, ‘property’ and ‘interests in property are creatures of state law.”);
Butner,
440 U.S. at 54 , 99 S.Ct. at 918 , 59 L.Ed.2d at 141-42 (“Congress has generally left the determination of property rights in the assets of a bankruptcy’s estate to state law.”);
In re Reed,
940 F.2d 1317 , 1322 (9th Cir.1991);
In re Atchison,
925 F.2d 209, 210-11 (7th Cir.1991);
Thomas,
883 F.2d at 995;
In re Detlefsen,
610 F.2d 512, 515 (8th Cir.1979).
It is these longstanding property of the estate concepts — those used to find just what property one holds as of the cleavage point marked by the moment one files bankruptcy and which of these interests become property of a bankruptcy estate— which reveal that when it comes to deciding what interests in property a debtor possesses for purposes of § 541(a) of the Bankruptcy Code, 11 U.S.C. § 541 (a), the structure of this portion of the Bankruptcy Code is federalists in nature. It is due to this federalists structure that one must resort to state law, here Alabama’s, in conjunction with the Bankruptcy Code, 11 U.S.C. §§ 101
et seq.,
to resolve whether Moore or Daniels held, as of the initiating of each’s bankruptcy case, any property interests constituting an unexpired lease of nonresidential real property within 11 U.S.C. § 541 (a) and, as a result, also included with 11 U.S.C. § 1306 (a).
B.
The Compounding
— Issues
and Analytical Process
Although one’s reading of the applicable Alabama statutes governing lease terminations and the decisions of Alabama’s courts regarding lease and tenancy endings should lead the reader to conclude that the status of the Moore lease and the Daniels lease with Farrington Apartments was evident as of April 13, 2001, other decisions by federal courts necessitate a broader analysis of the interplay of state law with the Bankruptcy Code, 11 U.S.C. §§ 101
et seq.
The result is that the analysis of the Moore-Daniels-Farrington Apartments contentions entails consideration of legal issues which may be divided into three categories. The first involves a determination under Alabama law of the station of each lease, in existence or ended, and what the tenancy/possessory rights of Ms. Moore and Ms. Daniels were as of the time each filed her bankruptcy petition.
Next is finding just what property interests recognized by the national law of bankruptcy Moore had and, alternatively, Daniels had under §§ 541(a), 1306(a) of the Bankruptcy Code, 11 U.S.C. §§ 541 (a), 1306(a), which is property of, respectively, the Moore bankruptcy estate and that of Daniels. More specifically and due to the pre-bankruptcy terminations of the leases, whether the presence of Ms. Moore and Ms. Daniels in each’s respective apartment on the commencement of each’s bankruptcy case gives either of them the kind, quality, and quantity of property interests which are sufficient to constitute an unexpired residential lease of real property within § 541(a) of the Bankruptcy Code, 11 U.S.C. § 541 (a), which may be assumed in a Chapter 13 case under 11 U.S.C. § 365 (a) & (d)(2).
The third grouping of legal issues for consideration is comprised of three ways by which some federal courts find the existence of an unexpired lease of residential real property despite state law recognizing the same lease and leasehold estate as having ended pre-bankruptcy. One is the holdings of federal courts which interpret one or more of § 362(b)(10), § 365(c)(3)
&
(d)(2), and § 541(b)(2) of the Bankruptcy Code, 11 U.S.C. §§ 362 (b)(10), 365(c)(3)
&
(d)(2), and 541(b)(2), as showing that a pre-
*861
bankruptcy terminated residential real property lease is property of a bankruptcy estate constituting an unexpired lease for assumption purposes under 11 U.S.C. § 365 . As is demonstrated later, those courts which have used one or more of 11 U.S.C. §§ 362 (b)(10), 365(c) & (d)(2), and 541(b)(2) as a method to cause the boundaries of the set of “property of the estate” to encompass residential real property leases terminated under state law pre-bankruptcy advance a centralists structure for determining the existence of property interests for property of the estate provisions of §§ 541(a), 1306(a) of the Bankruptcy Code, 11 U.S.C. §§ 541 (a), 1306(a). Additionally, a generalized rule for all residential real property leases is adopted by use of an analogy to residential mortgage default curing in Chapter 13 cases plus use of post-termination state lease antiforfeiture remedies as simply the curing of a default. This centralists approach makes certain non-property of the estate sections of the Bankruptcy Code control over the law of the constituent states to create and define what residential real property interests a debtor possesses as of the commencement of a bankruptcy case regardless of how the identical determination would be made under the federalists structure which allows state law to fix what property and interests in property a bankrupt debtor holds at the beginning of a bankruptcy case. Lastly, certain of the cases using a centralists approach also urge miscellaneous legal arguments to justify assumption of residential leases in Chapter 13 cases based on
In re Fontainebleau Hotel,
515 F.2d 913 (5th Cir.1975), to the effect that (i) Louisiana law is identical to Alabama’s on lease endings and is, therefore, authority for Alabama lease endings, and (ii) a federal general equity based policy utilized by the
Fontainebleau Hotel
court should be adopted for purpose of residential lease assumptions in Chapter 13 cases.
IV.
Alabama Law
— Existing
or Not, The State’s Domain
A.
The Statutory and Case Law Structure
— Complying
with Both
(1)
Statutes and Applicability
To determine whether a leasehold interest has been terminated under Alabama law, one must ascertain into which legal classification the lease fits. For the ending of express leases — not those implied by law, Alabama has five classifications. Four are set forth in Title 35, Chapter 9 of the Alabama Code and one is discussed in the opinions of Alabama’s courts and is based on the contractual agreement.
In Alabama, there is no statutory distinction under the relevant code sections between residential and nonresidential leases. See Ala.Code §§ 35-9-1
et seq.
(1991). This makes the statutes governing residential leases the same as those for nonresidential. One of the statutory classes is for leases for tenancies at will, or for which no time is specified for the end of the tenancy, Ala.Code § 35-9-3 (1991), a second is for leases with a month to month term or for a term of less than one year, Ala.Code § 35-9-5 (1991), the third is for leases terminated for breach of or a default under the provisions of the lease, Ala.Code § 35-9-6 (1991), and a fourth is for tenancies for a certain term and the term runs to its stated end, Ala.Code § 35-9-8 (1991). The fifth classification is not statutory and is for leases which by the terms of the contract specify as a default certain failures by a lessee to perform, make such defaults a basis to end or forfeit the lease, and/or grant a right of reentry to the landlord with or without the necessity of any (a) notice of termination or (b) physical retaking of the property,
*862
i.e., physical re-entry. See, e.g.,
Moriarty v. Dziak,
435 So.2d 35, 36-37 (Ala.1983);
Garrett v. Reid,
244 Ala. 254, 256 , 13 So.2d 97, 97-99 (1943);
First Nat’l. Bank of Huntsville v. Carter,
231 Ala. 268 , 164 So. 388 (1935);
Myles v. Strange,
226 Ala. 49 , 145 So. 313 (1932);
Johnson v. Blocton-Cahaba Coal Co.,
205 Ala. 373, 374 , 87 So. 559, 561 (1921);
Princess Amusement Co. v. Smith,
174 Ala. 342, 343-44 , 56 So. 979, 980 (1911).
For leases having a tenancy for which no ending point is set forth in the contract document, the lease is treated under Ala. Code § 35-9-3 (1991) as one from December 1 to December l.
5
In other words, the lease would end on the December 1 following the commencement of the lease term. Where a lease is expressly at will, the lease may be terminated by either the lessor or lessee at will by giving ten (10) days written notification. Ala.Code § 35-9-3 (1991).
6
Similar to the treatment of tenancies at will under Ala.Code § 35-9-3 (1991), Ala. Code § 35-9-5 (1991) specifies the ending of tenancies for month to month leases and leases for less than one year.
7
This section allows termination of the tenancy of one who does not have an agreement to holdover or stay on the premises by the giving of ten (10) days written notice of the termination. It also provides that the lessor/landlord
may
— not
must
— recover possession of the rented property by use of an unlawful detainer action. AIa.Code § 35-9-5 (1991).
8
Unlike the treatment of other tenancies, Alabama’s statute for leases involving a tenancy for a certain, fixed period which conclude by the lapse of such a term, e.g., a sixteen month lease ends at the end of sixteen months, requires the lessee to surrender possession of the leased property. No notification of the end of the tenancy or a demand for return of the leased property need be made of the lessee.
9
Ala.Code § 35-9-8 (1991).
Neither Ala.Code § 35-9-3 (1991), Ala. Code § 35-9-5 (1991), nor Ala.Code § 35-9-8 (1991) are applicable to the Daniels or Moore leases. This is due to the fact that these govern the termination of leases and the possessory right thereunder when either the term of the lease has concluded by running to the end of the stated term or, but for the giving of the statutory
*863
method of notice of termination, would otherwise either renew for a term equal to the original term, e.g., week-to-week, month-to-month etc., for up to less than one year, or continue on an at will basis. None of these is what occurred with Daniels and Moore.
(2)
Termination Meeting Statutory and Contract Requirements
— No
Resolution of Retaking of Premises Necessary
As the subsequent scrutiny will highlight, no discussion of Alabama’s lease termination statutes would be required if the leases at issue contained only the indispensable provisions for termination without their complicating language referencing having termination of the leases carried out in accordance with the provisions of the lease, applicable state law, and HUD regulations. Because the language of the lease with Daniels and the other with Moore is cobbled from HUD regulations, Alabama’s statutes governing lease terminations, and similar Alabama case law dealing with lease endings, it is susceptible of being interpreted as mandating compliance with both the contract termination requirements and those of the only applicable Alabama statute, Ala.Code § 35-9-6 (1991). Since the resolution of these landlord-tenant disputes is not changed by deciding the parties’ positions as if compliance with both the contract provisions and Ala.Code § 35-9-6 (1991) is required, this Court avoids resolution of this contract construing issue by deciding the Daniels-Moore-Farrington Apartments disputes as if both the contract and Alabama statutory preconditions to termination had to be met. Furthermore and as will become evident, all this Court need determine under Alabama law is whether each of the leases at issue ended pre-bankruptcy. If so ended and with the exception of whether the stay imposed under 11 U.S.C. § 362 (a) should be modified to permit Farrington Apartments to exercise one or more of its state law remedies to obtain possession of the apartments, no resolution by this Court in this case is warranted regarding retaking of possession of the leased premises by the landlord by use of Alabama’s unlawful de-tainer statute or otherwise. Likewise and since no valid argument has been presented that the prerequisites to termination under the applicable HUD regulations have not been followed, this Court need only consider whether terminations of the leases was done in accord with the terms of each lease and Alabama’s laws.
10
(3)
A Leasehold or Not
— Alabama’s
Position and That of Moore and Daniels
Ala.Code § 35-9-6 (1991) governs the ending of a lease and a lessee’s possessory rights thereunder for a breach of or default under the terms of the lease. It specifies that to terminate a lease for a breach or default “... it shall not be necessary to give more than 10 days notice to quit,
or of the termination of such tenancy
...” (emphasis added).
11
This section is
*864
clear that the lease is ended, in statutory-parlance terminated, following the giving of proper notice of termination: “... the same may be terminated on the giving of such notice [no more than ten days] ... any time after such default.” Ala.Code § 35-9-6 (1991). This section also provides for giving notice or demand to the lessee to leave the leased property and that “... no other notice or demand of possession or termination of such tenancy shall be necessary to maintain unlawful detainer.” Similar to this statutorily prescribed notice of termination is that specified in the Moore lease and that of Daniels with Farrington Apartments. It is to be notice in advance of no less than ten days commencing with service of the notice of termination.
12
For Alabama law purposes, the inquiry in these Farrington Apartments— Moore and Farrington Apartments — Daniels disputes is whether (i) the breaches or defaults relied upon are of the type upon which a termination under Alabama case law and Ala.Code § 35-9-6 (1991) may be premised, and (ii) the leases’ and Alabama’s statutory procedure to terminate were followed. Alabama has not by statute or under its common law allowed a breach or default under a lease for failure to pay rent to be a statutorily premised basis for termination of a lease or for reentry of the leased property. See
Kennamer Shopping Center, Inc. v. Bi-Low Foods, Inc.,
571 So.2d 299, 300 (Ala.1990);
Pieper v. American Sign/Outdoor Advertising, Inc.,
564 So.2d 49, 50 (Ala.1990) (No right to terminate lease and re-enter leased property for nonpayment of rent unless lease so provides.);
City of Birmingham v. Link Carnival, Inc.,
514 So.2d 792 (Ala.1987);
Ferguson v. Callahan,
262 Ala. 117, 118 , 76 So.2d 856, 857 (1955);
Myles,
226 Ala. at 50 , 145 So. at 313 . Although in
Kennamer
the lease was for a term certain and it allowed the lessee to end the tenancy on giving written notice of termination sixty days in advance of the effective date, it did not contain language making a lessee’s payment default the basis for terminating the lease or granting a right of re-entry to the lessor. The Supreme Court of Alabama held that Ala. Code § 35-9-6 (1991)
... does not, of itself, provide an independent right of re-entry or power of termination of the leasehold agreement. No such right or power exists upon default in the absence of a provision therefore in the agreement itself.... More specifically, this Court has long held that the non-payment of rent does not constitute a statutory default giving rise to a right of
re-entry or
power of termination independent of covenants in the lease.
Kennamer,
571 So.2d at 300 (citations omitted). Despite this, Alabama law recognizes and its courts enforce contractual agreements making nonpayment of rent a
*865
default upon which a lessor may predicate termination of a lease and re-entry of the leased premises. See
Kennamer Shopping Center, Inc.,
571 So.2d at 300 ;
Ferguson,
262 Ala. at 118 , 76 So.2d at 857 ;
Myles,
226 Ala. at 50 , 145 So. at 314 .
13
In these Moore — Daniels—Farrington Apartments matters, each of the leases contains this language:
¶ 16. Reporting Changes Between Regularly Scheduled Recertifications:
a. If any of the following changes occur, the Tenant agrees to advise the landlord immediately.
^ H< H* H* H5 H*
(8) The household’s income cumulatively increases by $40 or more a month.
Hi ^ Hs H« H*
c. If the Tenant does not advise the Landlord of these interim changes, the landlord may increase the Tenant’s rent to the HUD-approved market rent.
Ht ^ ^ H* ^ ^
The lease entered into by Ms. Moore and that by Ms. Daniels required that each disclose an increase in household income of $40.00 or more per month. It is undisputed that such an income increase occurred and that neither Ms. Moore nor Ms. Daniels complied with the lease income reporting requirement.
Coupled with its ability to increase rent to the HUD approved market rate under paragraph 16c of each lease, paragraph 18 of each lease imposes a tenant repayment obligation:
... or does not report interim changes in family income or other factors as required by paragraph 16 of this Agreement, and as a result, is charged a rent less than the amount required by HUD’s rent formulas, the Tenant agrees to reimburse the Landlord for the difference between the rent he/she should have paid and the rent he/she was charged....
This is what Farrington Apartments did. It assessed Erica Moore $2,176.00 in rent following the paragraph 18 recalculation and in like manner determined Ms. Daniels owed $1,464.00 as added rent which should have been paid if the proper state of her household income had been divulged.
Of crucial significance to resolution of whether the leasehold interests and tenancy rights of Ms. Moore and Ms. Daniels were, in fact, terminated under Alabama law is the language set forth in paragraph 23 of each lease which is the portion governing termination of tenancy. Paragraph 23b specifies that Farrington Apartments may terminate the
... Agreement only for:
(1) the Tenant’s material noncompliance with the terms of this agreement □
‡ ‡ ‡ ‡ ‡ ‡
Later in paragraph 23, material noncompliance is defined to include, among other things, “... non-payment of rent ... due
*866
under the lease beyond the grace period permitted under State law.”
Ms. Moore and Ms. Daniels concede that they did not make the contractually mandated disclosure of an increase in household income, received notice of the additional rent due for the period during which each did not disclose the increase in household income, and have never paid the assessed, additional rent. As a consequence of this state of affairs, each was in material noncompliance with the terms of the respective lease agreements and Farrington Apartments had the contractual right to terminate the lease and tenancy of Ms. Moore and that of Ms. Daniels. This it did for each effective on April 13, 2001.
As already indicated, the agreement by Moore and that by Daniels making by contract nonpayment of rent a basis for termination of a lease, and of the tenancy thereunder, is recognized and enforced by Alabama’s courts. See
Kennamer Shopping Center, Inc.,
571 So.2d at 300 ;
Lynaum Funeral Home, Inc. v. Hodge,
576 So.2d 169, 170-71 (Ala.1991). Given the explicit language making nonpayment of rent a default and a basis for termination of the Daniels lease and the Moore lease, such a default is also one on which Ala. Code § 35-9-6 (1991) may be used to end each lease.
Kennamer Shopping Center, Inc.,
571 So.2d 299 ;
Pieper,
564 So.2d 49 ;
Link Carnival, Inc.,
514 So.2d 792 ;
Ferguson,
262 Ala. 117 , 76 So.2d 856 ;
Myles v. Strange,
226 Ala. 49 , 145 So. 313 (1932). The result is that the basis for each of the terminations is proper and enforceable under the respective leases and Alabama’s laws.
At this juncture for Alabama law purposes, it remains to be decided whether Farrington Apartments procedurally implemented termination of the lease with Ms. Moore and that with Ms. Daniels consistent with what each lease and Alabama’s statute require. With respect to Ms. Daniels, a written notice of termination of lease, signed on behalf of Farrington Apartments, dated and addressed to her, was served on her at the leased premises on April 3, 2001. It specified consistent with the terms of the lease that the termination was for default in payment of rent for “April, 1999, to present” and that the lease was terminated ten (10) days from receipt of the notice. For Ms. Moore, a similarly signed, dated, and addressed notice of termination was served on her at the leased premises on the same day as Ms. Daniels’s notice with the identical ten (10) days prior notice of the effective date. The basis of the termination was nonpayment of rent for July, 2000, to March 1, 2001. Both notices were served in a manner allowed under the contract provisions and the propriety of the method of service has not been challenged. For Ms. Moore and Ms. Daniels, the procedure followed for termination of the leases and leasehold estates was in accord with the requirements of the lease provisions.
The same is true for the procedural requirements of Ala.Code § 35-9-6 (1991). They have been met for each of the leases. Farrington Apartments gave the statutorily required notice of termination in a proper form, manner, and content. The ten (10) days advance notice of the effective date of termination is more than the minimum which is required by Ala.Code § 35-9-6 (1991). In fact, Alabama’s Supreme Court has enforced a residential lease provision which made termination of the lease and possessory interest under the lease “immediately” on giving of such notice.
Johnson v. Blocton-Cahaba Coal Co.,
205 Ala. 373, 376 , 87 So. 559, 562 (1921).
Since the breach or default relied on by Farrington Apartments is within the scope of and proper notice of termination having been given under the contract provisions
*867
and Ala.Code § 35-9-6 (1991), the Alabama’s courts’ holdings on the impact of such a status are consistent: the tenant has no leasehold estate and no lawful right under any consensual agreement with a lessor to be on or to use the formerly leased property. See
Kennamer Shopping Center, Inc.,
571 So.2d 299 ;
Pieper,
564 So.2d 49 ;
Link Carnival, Inc.,
514 So.2d 792 ;
Jones v. Duncan,
250 Ala. 587 , 35 So.2d 345 (1948);
Blocton-Cahaba Coal Co.,
205 Ala. 373 , 87 So. 559 (residential lease termination). As the Supreme Court of Alabama set forth in
Jones v. Duncan
describing the predecessor to Alabama Code § 35-9-5 (1991):
The purpose of the notice provided for in section 5, Title 31, Code, is not to require the tenant or lessee to do any act. Its purpose is to change his status in relation to the landlord or lessor, and to terminate his existing lease and pos-sessory right thereunder.
Jones v. Duncan,
250 Ala. at 589 , 35 So.2d at 347 .
The implication is self-evident. Ms. Moore’s lease with Farrington Apartments and her estate in the leased premises ended on April 13, 2001. The same applies to Ms. Daniels’s lease and leasehold estate. From April 13, 2001, Ms. Moore and Ms. Daniels had no lease for an apartment with Farrington Apartments, no right of tenancy under a lease, and no leasehold estate on which to premise possession of the respective apartments. Daniels and Moore have simply remained in the respective apartments for which they no longer had under Alabama’s laws any lawful right to occupy or possess. See
Lane v. Henderson,
232 Ala. 122, 123-24 , 167 So. 270, 271 (1936);
Blocton-Cahaba Coal Co.,
205 Ala. at 376 , 87 So. at 562 (After termination of a residential lease, notice to quit under then existing version of unlawful detainer statute, Ala.Code 1907 § 4263, “... gave defendant no possessory right ... to remain on the premises longer than the 10 days provided by the ...” statute. In 1996, the ten day unlawful detainer statutory period to quit the premises was eliminated resulting in no such statutory justification, if it ever was one, for remaining on a premise after termination. Ala. Code § 6-6-310 (2) (1991).).
What is perceptible is that any deconstruction of the meaning of Alabama’s statutes governing the ending of leases, its courts’ interpretations of them, or of Alabama’s courts’ enforcement of terminations of leases following giving of the notice of termination in the proper form, by the proper manner, and predicated on a default made a basis for ending a lease by the terms of the lease is not supported by Alabama’s statutes, its courts’ interpretations of them, or Alabama’s courts’ enforcement of contract terms ending leases for nonpayment of rent. Since the April 13, 2001, effective date of termination of each of the leases with Farrington Apartments preceded the bankruptcy filings by Ms. Moore and Ms. Daniels, the result has been that Ms. Moore and Ms. Daniels had no residential real property leasehold interest under Alabama’s laws as of the institution of each’s bankruptcy case which could become property of the estate under 11 U.S.C. §§ 541 (a), 1306(a). More directly and although each occupied a residential real property on the filing of bankruptcy, the source of their occupancy rights and possession of the residential real property was, as of the date of each’s respective bankruptcy filing, not from a lease and did not constitute a leasehold estate.
(4)
Relief or Not
— The
Antiforfeiture Progression
Although for many Alabama leasehold interests the discussion of the existence or not of a residential real property interest under Alabama law might end at this
*868
point, other bankruptcy case law which uses subparts of the Bankruptcy Code to redefine the scope of property interests beyond that provided for under state law requires a further consideration of Alabama law. It is an area of law not addressed by Moore, Daniels, or Farrington Apartments: equitable and/or statutory antiforfeiture laws. In Alabama, there is no statutory authority for undoing an accomplished forfeiture of a lease and leasehold estate. See Ala.Code §§ 3-5-9
et seq.
(1991). However, there is equity derived authority for a court to grant relief from the termination of a lease. This same equity founded power is also located in decisions of Alabama courts dealing with a lessee’s request to enjoin or otherwise prevent a lessor from exercising a right to end a lease and the tenant’s estate conveyed under a lease.
To frame the perimeters of an Alabama court’s equity based authority to relieve a lessee from the termination of a lease and leasehold estate, an understanding of one of the purposes of a lessor’s right to cause a lease to be forfeited or ended is helpful. The covenant of forfeiture is what gives the lessor the right to terminate a leasehold estate following a default in payment of rent and it is considered security for payment of the rent. Among other things, this security enforces a lessee’s performance of the payment obligations. Absent a contract provision to the contrary, payment of all rent due plus the landlord’s damages by a lessee
post-default and before termination
has been viewed as fulfilling the forfeiture covenant’s purpose and relieving the necessity for its operation.
Humphrey v. Humphrey,
254 Ala. 395, 399 , 48 So.2d 424, 427 (1950);
Cedrom Coal Co. v. Moss, 230
Ala. 32, 34-35, 159 So. 225, 227 (1935);
City Garage & Sales Co. v. Ballenger,
214 Ala. 516, 518 , 108 So. 257, 259 (1926);
Cesar v. Virgin,
207 Ala. 148, 149 , 92 So. 406, 407 (1921); see also Jesse P. Evans III,
Alabama Property Rights & Remedies
§ 21.5(b)© (2d ed.1998). More bluntly, the lessor’s security having fulfilled its intended contractual purpose of forcing compliance with the lease’s contractual rent requirement obviates the lessor’s ability to end the lease and estate conveyed.
While bearing in mind the security purpose underlying the covenant of forfeiture, Alabama’s courts have in limited instances utilized it along with the equitable maxim that “equity abhors a forfeiture” as a basis for either granting relief from an accomplished forfeiture of a lease or preventing a lessor’s enforcement of the termination of the lease and the estate conveyed under the lease. See, e.g.,
Humphrey v. Humphrey,
254 Ala. 395, 399 , 48 So.2d 424, 427 (1950);
City Garage & Sales Co. v. Ballenger,
214 Ala. 516, 518 , 108 So. 257, 259 (1926). Since the Moore lease and the Daniels lease have been terminated, this Court is not faced with a fact pattern involving prevention of Farrington Apartments’ exercise of its contractual and/or statutory right to terminate. Despite this, use of Alabama’s equity based case law dealing with both preventing a lessor’s termination of a lease along with that addressing relief from already terminated leases is helpful in gaining an appreciation of Alabama’s limits on avoiding — in its prospective and retroactive usages — forfeitures of leasehold interests for nonpayment of rent.
When rent is paid after the due date and accepted by a landlord
before
notice of termination is given, Alabama’s courts have consistently held that the landlord has waived late payment as a basis for ending the lessee’s tenancy unless the landlord in the lease or otherwise informs the lessee that acceptance of such a payment is not a waiver of the right to termi
*869
nate.
City Garage and Sales Co. v. Ballenger,
214 Ala. 516, 518 , 108 So. 257, 259 (1926). Likewise, a course of dealing where a tenant repeatedly pays rent late has been used as a basis for not allowing termination of the lease and the tenant’s pos-sessory rights thereunder. See
Lynaum Funeral Home, Inc.,
576 So.2d 169 ;
Humphrey v. Humphrey,
254 Ala. 395, 399 , 48 So.2d 424, 427 (1950). The same is not the case after a lease is terminated. The general rule in Alabama is that payment,
after termination
of a lease, of rent owed for the period before termination and receipt of these payments by the lessor
without something more than payment
does not waive or undo the ending of the lease and the tenant’s leasehold estate.
City Garage & Sales Co.,
214 Ala. at 518 , 108 So. at 259 . One should also note that the equitable antiforfeiture remedy if utilized following termination is an after termination holding to not allow a lessor to enforce termination of the lease and the lessee’s loss of the possessory interest in the leased property by eviction, unlawful detainer, ejectment, injunction or some other method. This is not the same as the curing of a default under a lease which has not been terminated!
14
In each instance — tender before or after termination, Alabama’s courts acting as courts of equity will not grant relief from loss of the lease and the possessory right conveyed for nonpayment of rent not disputed in amount unless the full sum owed is tendered prior to a lessee’s seeking such equitable relief. The opinion of the Alabama Supreme Court in
Dean v. Coosa County Lumber,
232 Ala. 177 , 167 So. 566 (1936) contains this statement of what is required:
The jurisdiction to relieve against forfeitures is founded upon the principle that a party having legal rights shall not be permitted to use them oppressively to the injustice of the defaulting party, but the principle does not extend so far as to authorize a court of equity to set aside the valid stipulations of the parties upon the performance of which their rights depend. And where there is no controversy as to the balance due, and a reasonable opportunity is afforded for payment or tender, a tender of the amount due is a prerequisite to the right to invoke the jurisdiction of a court of equity to relieve from the forfeiture.
Dean,
232 Ala. at 182 , 167 So. at 571 . See also
Hunter-Benn & Co. v. Bassett Lumber Co.,
224 Ala. 215, 218 , 139 So. 348, 349 (1932);
Carter v. Brownell Auto Co.,
217 Ala. 690 , 117 So. 304, 305 (1928). What must be tendered prior to seeking avoidance of the loss of the lease and the tenant’s estate is not just the accrued, unpaid rent.
15
Part of what more is necessitated is the tender of payment of any damages a lessor may have sustained as a result of the nonpayment of rent. See
Cedrom Coal Co. v. Moss,
230 Ala. 32 , 159 So. 225 (1935);
City Garage & Sales Co.,
214 Ala. 516 , 108 So. 257 ;
Cesar v. Virgin,
207 Ala.
*870
148, 92 So. 406 (1921);
Abrams v. Watson,
59 Ala. 524 (1877). This case law makes evident that absent the required tender of payment, Alabama’s courts will not invoke equity principles to either prevent termination of a lease and the tenant’s right to possession or grant relief from a terminated lease and leasehold estate.
Further complicating the positions espoused by Daniels and Moore for their ability to assume the leases is, that under Alabama case law, the mere tender of payment of rent and damages is not all that is required. There is yet another part of what more is required for Alabama’s courts use of their equitable powers.
City Garage & Sales Co.,
214 Ala. at 518 , 108 So. at 259 (“The general rule is that payment after forfeiture [is] declared of rents which accrued before forfeiture, and receipt of the same, without more does not waive an existing forfeiture.”). Just what that other part of the “more” is ascertainable by review of Alabama’s case law. Generally, it is when the penalty of loss of the leasehold interest is disproportionately greater than the damages suffered by a breach of contract and when termination results in the lessor being unjustly enriched. See, e.g.,
Humphrey v. Humphrey,
254 Ala. 395 , 48 So.2d 424 (Termination of lease voided where substantial, valuable improvements made to leased premises, location was only one from which lessee could operate business, and loss of location would end lessee’s business. Furthermore, a conflict in evidence existed regarding lessor’s demand that future rent payments be made timely. Court held termination was unjust, inequitable, and unconscionable.);
Coley v. W.P. Brown & Sons Lumber Co.,
251 Ala. 235 , 37 So.2d 125 (1948) (Where purchaser paid for timber removal rights for five year period and had right to extension of one year if timber could not be harvested due to conditions beyond purchaser’s control, here lack of labor and certain supplies caused by war, refusal of landowner-seller to extend term by one year following end of initial five year period did not permit exercise of forfeiture of contract and right to timber. Essentially, the court avoided the purchaser losing right to timber in instance where landowner-seller had been paid and there was a valid dispute over contract extension terms.);
Dean,
232 Ala. 177 , 167 So. 566 (Court avoids termination of timbering contract where substantial monies had been paid in advance of timbering and termination resulted in loss of timbering business, loss of timber owned by buyer-lessee under contract’s terms, and loss of advance payment by buyer-lessee.).
What these Alabama cases demonstrate is that the second of the two parts of the “more” than payment of unpaid, accrued rent plus damages necessary to avoid forfeiture of a lease and leasehold is not merely the loss of the leasehold estate, but its loss coupled with the loss of an investment or a business along with (a) an unconscionable gain or conduct by the lessor, or (b) a valid dispute over contract terms sufficient to legally justify the lessee’s nonpayment of rent. From analysis of these opinions, two further caveats on equitable relief from the forfeiture of a leasehold estate need to be mentioned. This Court has only located reported Alabama court decisions applying this equity based power when a business or commercial leasehold is involved. Secondly, Alabama’s Supreme Court has held that using such equitable powers to avoid a lease’s termination is not available for a lessee whose “... defalcation has been willful or intentional.”
Barry v. Welch,
248 Ala. 167, 168 , 26 So.2d 872, 873 (1946).
For Daniels and Moore and assuming for purposes of argument that Alabama’s courts would apply these equity
*871
based case law holdings to residential leaseholds, no ability under Alabama’s laws to seek relief from avoidance of the ending of each’s lease with Farrington Apartments existed or exists. The giving of an opportunity to pay the unpaid rent before the effective date specified in the notice of termination coupled with the terminations (a) not imposing a penalty which in proportion results in Farrington Apartments being unjustly enriched, (b) not being based on unjust or unconscionable conduct by Farrington Apartments, and (c) not resulting from inequitable actions by Farrington Apartments, vitiates any basis for Moore or Daniels to seek relief from forfeiture of their respective leasehold estates by use of Alabama’s antiforfeiture equity based case law. This position is strengthened when one recalls that the disputes between Farrington Apartments — a non-governmental landlord — and Moore and Daniels do not entail either’s loss of the right to participate in HUD’s rent subsidy program. Joined with these factors is Moore’s and Daniels’s failure to disclose their true incomes. In the Moore and Daniels circumstances, this constitutes a failure to pay rent which is a willful and intentional default by each of the terms of their respective agreements with Farring-ton Apartments. This sort of conduct precludes resort to Alabama’s courts’ antifor-feiture equitable powers.
Barry,
248 Ala. at 168 , 26 So.2d at 873 .
The completed analysis under Alabama’s laws is that as of the commencement of Ms. Moore’s bankruptcy case she possessed no lease of residential real property and no ability to undo the already effective termination of the lease and her possesso-ry interest in the apartment. The same is true for Ms. Daniels. Each’s presence on the property of Farrington Apartments did not and does not under Alabama’s laws arise from or under the terms of a lease. Rather under Alabama’s law, Moore’s and Daniels’s remaining on the residential property is unlawful and makes each a “tenant at sufferance ... [whose] posses-sory right had terminated ...” See
Jordan v. Sumners,
222 Ala. 314, 318 , 132 So. 427, 431 (1930); David C. Skinner,
Alabama Residential, Commercial & Mineral Lease Law
§ 2-8 (1997). See also,
Lane v. Henderson,
232 Ala. 122, 123-24 , 167 So. 270, 271 (1936);
Blocton-Cahaba Coal Co.,
205 Ala. at 376 , 87 So. at 562 .
(5)
The Evolution of Ending a Lease and Leasehold AJKJA The Fiction of Physical Reentry
With respect to Alabama’s laws, a few added remarks are needed. There has been an evolution in when and how a lease and leasehold estate are ended. Early in Alabama’s existence, the point of termination of the possessory interest of a lessee was on the physical retaking of the leased real property by the lessor. Overtime, this has been changed to allow termination to occur without the necessity of a lessor physically dispossessing a lessee from the leased real property. Under Alabama’s statutes, physical retaking of leased property by a lessor to end a leasehold estate is no longer required. By Alabama’s courts’ rulings, the lessor and lessee may by contract avoid certain of the common law founded and statutory prerequisites to termination making even easier and quicker the ending of a lease and the lessee’s possessory interest in the leased property. As is to be discussed
infra
for other jurisdictions, these advances in Alabama’s laws allowing parties to a lease to specify instances supporting the ending of a lease which had not previously existed at common law or by statute, simplifying what needs to be done to end a lease and leasehold estate, and accelerating the time period for accomplishing terminations have occurred elsewhere. It is these progressions in the landlord-tenant
*872
relationship ending laws which must be kept in mind during the discussion of the methods used by some federal courts for extending a lessee’s leasehold estate’s existence beyond the point state laws so fixes. By consideration of the evolution of the ending of a lease for default in payment of rent, what becomes apparent is that the modifications in this area of Alabama law have
not
been to make the ending of one’s interest in a lease and leasehold estate more difficult, more technical, or more drawn out.
V.
The Deconstructionism
A.
Overview
Given this Court’s holding that under Alabama law the Moore and Daniels leases ended before bankruptcy and each is not entitled to relief from termination under state antiforfeiture equitable case law, what must be addressed is the further convolution caused by a body of bankruptcy case law which interprets one or more of 11 U.S.C. §§ 362 (b)(10), 365(c)(3)
&
541(b)(2) in a manner which expands the scope of 11 U.S.C. § 365 (a) & (d)(2) and overrides the longstanding procedure espoused in
Butner
for ascertaining just what property a debtor possessed at the instant he or she files a bankruptcy case. The why for consideration is that should what is being done by certain courts sitting as courts of bankruptcy be correct, it is a method by which state laws marking the boundaries of one’s property interests are altered. By following these courts’ interpretations of parts of the Bankruptcy Code, that which under state law is no longer a property interest and under
But-ner, et al.
is not property of the estate becomes an unexpired residential lease of real property which is (i) treated as property of the estate, (ii) accorded certain protections by the automatic stay of 11 U.S.C. § 362 (a), and (iii) assumable under 11 U.S.C. § 365 (a) & (d)(2).
How this has been occurring under the Bankruptcy Code is disclosed by resort to consideration of bankruptcy case law dealing with stay modification and lease assumptions. This is because disputes which arise in these contexts frequently entail consideration of some or all of the identical legal issues and the means utilized by some courts to achieve denial of stay modification with respect to and/or the allowance of assumption of a residential lease of real property. To understand what is being done does not require recourse to a discussion of all cases involving these issues. Rather, it is sufficient to outline the modes used to find the existence of an unexpired lease of residential real property along with consideration of how these methods are applied in cases primarily from some of the courts within the jurisdictions comprising the Courts of Appeals of the United States for the Sixth, Ninth, and Eleventh Circuits.
B.
Structure of Deconstruction Methodologies
(1)
Not Objectionable Types
Certain of the reasons for why a residential lease of real property is property of a bankruptcy estate are proper and not validly questionable. These include (i) the failure of a lessor to properly end a lease as required by contract, case law, or statute, (ii) not having the right to default and forfeit the leasehold interest for nonpayment or other breach of the lease, and (iii) certain actions occurring before the ending of the lease and estate conveyed and those happenings after termination constituting a waiver of the right of a lessor to enforce forfeiture of the tenant’s leasehold estate.
These enumerated bases for why there exists an unexpired lease of residential real property as of a debtor’s filing bankruptcy are not the subject of this Court’s attention. This is due to the fact that, in
*873
general, a failure to follow proper procedure to end, lack of a valid reason for termination, and/or lessor conduct constituting a waiver of the right to forfeit a leasehold estate should, absent other intervening factors, result in a ruling under state law that the subject lease and conveyance were not ended prior to one’s filing bankruptcy or that the termination will not be enforced because of waiver of the right to so do by the lessor.
16
For 11 U.S.C. § 541 (a) purposes, this leaves the debtor on the bankruptcy cleavage date possessing a bundle of property interests aggregating under state law the whole of a residential real property leasehold estate which constitute “property of the estate” under § 541(a) of the Bankruptcy Code, 11 U.S.C. § 541 (a).
(2)
The Considered Means
The focus of this Court is the processes employed to contend that the termination of a lease of residential real property is not final, i.e., incomplete, or the terminated lease remained potentially capable of being what is variously described as undone, avoided, voided, or revitalized, reinstated, reversed, resurrected, or relieved. Most of the courts which use one or more of the methods to be discussed start with a recitation from
Butner v. U.S.,
440 U.S. 48 , 54 n. 9, 99 S.Ct. 914 , 917-18 n. 9, 59 L.Ed.2d 136 , 141 n. 9 (1979), or one of its adherents that reference is to be made to state law to locate a debtor’s interests in property as of the filing of bankruptcy. Although not necessarily stated as a followed formula, each court looks to see if the lease was terminated under applicable state law before the filing of the bankruptcy case. Next, if terminated, is the determination of whether the ending is avoidable under a state antiforfeiture provision or other state law. See, e.g.,
In re Windmill Farms, Inc.,
841 F.2d 1467, 1469-72 (9th Cir.1988);
City of Valdez v. Waterkist Corp. (In re Waterkist Corp.),
775 F.2d 1089, 1091 (9th Cir.1985);
In re Ross v. Metropolitan Dade County,
142 B.R. 1013, 1015-16 (S.D.Fla.1992);
In re Atkins,
237 B.R. 816, 818-19 (Bankr.M.D.Fla.1999). See also, e.g.,
Kopelman v. Halvajian (In re Triangle Laboratories, Inc.),
663 F.2d 463, 471 (3d Cir.1981);
In re Mimi’s of Atlanta, Inc., 5
B.R. 623, 628-29 (Bankr.N.D.Ga.1980) aff
'd,
11 B.R. 710 (N.D.Ga.1981). This two-step analysis sets the stage for what ensues. For to be an unexpired lease of residential real property for Bankruptcy Code purposes, either the termination of the lease must not be effective pre-bankruptcy or its ending has to be relieved somehow either pre-bankruptcy or post.
(a)
Linguistics & Maxims
One of the ways by which a termination is determined ineffective is by using variations of a maxim of statutory construction, stated as such or not, that the expressed exclusion of ended nonresidential real property leases from (i) the protections of the automatic stay of § 362(a) by the language of § 362(b)(10),
17
(ii) assumption un
*874
der § 365(a) by the wording of § 865(e)(3),
18
and (iii) property of the estate under § 541(a) by the phraseology of § 541(b)(2),
19
evidences the legislatively intended inclusion of leases of residential real property terminated pre-bankruptcy as within the perimeters of the stay protections of § 362(a), the assumability of leases under § 365(a) & (d)(2), and property of the estate under § 541(a)(1). See, e.g.,
In re Ross v. Metropolitan Dade County,
142 B.R. 1013, 1015 (S.D.Fla.1992);
In re Morgan,
181 B.R. 579, 583-84 (Bankr.N.D.Ala.1994);
In re Talley,
69 B.R. 219, 223 (Bankr.M.D.Tenn.1986).
Woven into this maxim argument is the contention of a semantical purpose revealed by the same three subparts of the Bankruptcy Code, 11 U.S.C. §§ 362 (b)(10), 363(c)(3) & (d)(2), and 541(b)(2). Some courts assert this linguistic distinction to bolster the maxim based argument by looking to the everyday, nonlegal definitions of terminate and expire — their claimed plain meanings — and arguing that as commonly used they are different in meaning. Terminate is said to be some action which prematurely brings a lease to an end which is different from an ending by the passage of time to the stated term that is its expiration.
In re Ross,
142 B.R. 1013, 1015 (S.D.Fla.1992);
In re Morgan,
181 B.R. 579, 583-84 (Bankr.N.D.Ala.1994);
In re Talley,
69 B.R. 219, 223 (Bankr.M.D.Tenn.1986). Using this so-called plain meaning usage distinction in conjunction with the statutory interpretation maxim that exclusion of one includes the other, unexpired is deemed to have been intentionally selected so leases of residential real property ended before running of the stated term, i.e., the so-called terminated ones, are not expired, that is they are unexpired. It is argued that these statutory interpretation devices evidence that Congress did not use terminate and expire synonymously. This is a part of the foundation for why a residential lease of real property terminated under state law purportedly may remain unexpired for purposes of § 365(a) & (d)(2) assumption. See e.g.,
In re Ross,
142 B.R. 1013, 1015 (S.D.Fla.1992);
In re Morgan,
181 B.R. 579, 583-84 (Bankr.N.D.Ala.1994);
In re Talley,
69 B.R. 219, 223 (Bankr.M.D.Tenn.1986).
(b)
The Analogy
— Mortgages
& Leases
Another device wielded to support the position that a lease is unexpired for § 365(a) & (d)(2) assumption is to analogize to the law of mortgages and the point at which it is contended the ability to avoid the loss of all of one’s legal and equitable interests in the mortgaged real property is ended. In states which permit nonjudicial foreclosures, this so happens to be when the equitable right of redemption is extinguished which generally is on the sale of
*875
the real property at foreclosure to another.
Commercial Federal Mtg. Corp. v. Smith (In re Smith),
85 F.3d 1555, 1557-58 (11th Cir.1996) (citing as authority
Federal Deposit Ins. Corp. v. Morrison,
747 F.2d 610, 613 (11th Cir.1984));
Trauner v. Lowrey,
369 So.2d 531, 534 (Ala.1979);
In re Greene,
248 B.R. 583, 607 (Bankr.N.D.Ala.2000) (citing as authority
Summerford v. Hammond,
187 Ala. 244 , 65 So. 831 (1914));
Gerasimos v. Continental Bank,
237 Mich. 513, 518-19 , 212 N.W. 71, 73 (1927). In this type of foreclosure transaction, the sale need not be confirmed by court order. When foreclosure by judicial decree is the procedure followed, the right of equitable redemption may be lost at another point along the way to its sale. In some states, it is when “... a mortgagee seeks and is granted a decree of foreclosure.”
Hausman v. City of Dayton,
73 Ohio St.3d 671, 676 , 653 N.E.2d 1190, 1194 (1995);
Ohio Dept. of Taxation v. Plickert,
128 Ohio App.3d 445, 447 , 715 N.E.2d 239, 241 (1998). Then from entry of the decree of foreclosure until court confirmation of the sale following its having occurred, a period of statutory redemption may be allowed.
Hausman,
73 Ohio St.3d at 676 , 653 N.E.2d at 1194 ;;
Plickert,
128 Ohio App.3d at 447 , 715 N.E.2d at 241 (foreclosure decree “... generally terminates the debtor’s common-law right of equitable redemption.”);
Wayne Savings & Loan Co. v. Young,
49 Ohio App.2d 35, 37-38 , 358 N.E.2d 1380, 1381-82 (1976); see also Ohio Rev.Code Ann. § 2329.33 (2002). When foreclosure by judicial decree is used, just where the right of equitable redemption is lost may be different in other jurisdictions. See, e.g.,
Swift v. Kirby,
737 S.W.2d 271, 279-77 (Tenn.1987)(Detailing development of equity of redemption in Tennessee and the historical misuse of equity of redemption to describe both the right of equitable redemption and statutory redemption. Today in Tennessee, “equity of redemption” usage now includes the statutory right of redemption set forth in Tenn.Code Ann. § 66-8-101,
et seq.).
During the case law decision development of the point at which all of one’s interests in mortgaged real property are ended and before the split in authority among the Circuit Courts of Appeals of the United States on the point after which a default under a mortgage may no longer be cured, compare
In re Roach,
824 F.2d 1370 (3rd Cir.1987), with
In re Glenn,
760 F.2d 1428 (6th Cir.1985), was resolved by a 1994 amendment to 11 U.S.C. § 1322 setting forth what is now § 1322(c)(1), some Bankruptcy Courts analogized how and when all interests in a lease and leasehold estate are ended to how the Sixth Circuit in
In re Glenn
selected the point of loss of all interests of a consumer-debtor in mortgaged residential real property. The so-called analogous leasehold estate ending point is required by some bankruptcy courts to be where the debtor-lessee (i) no longer has any property interests forming any portion of what is a leasehold estate, and (ii) does not have any further ability to obtain relief from the forfeiture of the leasehold estate. This point in the lease-leasehold estate ending process is variously recited to be at some point from the of entry of a judgment of possession in an unlawful detainer suit to the later issuance, service, or execution of a writ of possession in such a suit. See, e.g.,
In re Ross,
142 B.R. 1013, 1015-16 (S.D.Fla.1992) (unclear whether issuance of judgment or service of writ of possession);
In re DiCamillo,
206 B.R. 64, 67 (Bankr.D.N.J.1997) (entry of judgment for possession); In re
Atkins,
237 B.R. 816, 819 (Bankr.M.D.Fla.1999) (unclear whether issuance of judgment or service of writ of possession);
In re Morgan,
181 B.R. 579, 585 (Bankr.N.D.Ala.1994) (execution of writ of possession);
In re Yardley,
77 B.R. 643, 644 (Bankr.
*876
M.D.Tenn.1987) (execution of writ of possession);
In re Talley,
69 B.R. 219, 225 (Bankr.M.D.Tenn.1986) (service of writ of possession). By analogy to the
Glenn
mortgaged residential real property methodology, these courts argue that it is only at such a point where all of the lessee’s interests in the leasehold estate are unalterably ended.
Once the lease termination is viewed as incomplete due to the absence of either a final judgment or issuance/service of a writ of possession in an unlawful detainer suit, the unexpired status of the lease for as-sumability purposes is pre-ordained by those using the mortgage analogy argument. It is contented that this state of affairs results from the possessory interest of the lessee, which is sometimes also referred to as the estate conveyed, not having been ended.
20
(c)
Antiforfeitwre
Yet another way followed to establish an unexpired residential real property lease for § 365 assumability is application of what are denominated as antiforfeiture statutes and similar equity based case law rulings. Although sometimes the antifor-feiture laws or the equitable powers of a court are used preemptively to stop a lessor from ending a lease and the tenant’s possessory right thereunder, this type of relief from the forfeiture of a leasehold estate is not germane to this discussion because the preemptive use of these anti-forfeiture provisions by a tenant will take place before the termination of the lease and the lessee’s possessory interest. In the context of a bankruptcy, a case of peremptory use of antiforfeiture provisions means that the lessee’s interest in the leasehold estate was not eliminated before the bankruptcy case was filed. The outcome is usually that the lessee’s possesso-ry interest conveyed under the lease (i) was not ended under state law before bankruptcy, (ii) was not terminated/expired under the national law governing bankruptcy, and (in) is an interest which may be property of the estate under § 541(a) of the Bankruptcy Code, 11 U.S.C. § 541 (a).
For this Court’s analysis, it is when under the governing jurisdiction’s laws a residential lease of real property is ended
*877
before the tenant’s bankruptcy that these statutory and equitable ease law antiforfei-ture remedies must be looked to determine whether there is a residential lease of real property which becomes property of a bankruptcy estate. While before the merger of courts of law with those of equity many jurisdictions developed a body of case law utilizing equitable principles to sometimes relieve a lessee from forfeiture of a leasehold estate, some states also enacted laws which specify the when, how, and on what basis relief may be accorded from the forfeiture of a leasehold. See, e.g.,
Wilson v. Bill Barry Enterprises, Inc.,
822 F.2d 859, 861-62 (9th Cir.1987) (citing California statutes for relief from lease forfeitures);
In re Great Feeling Spas, Inc.,
275 B.R. 476, 478-81 (Bankr.D.N.J.2002) (delineating New Jersey’s equitable case law antiforfeiture development and its statutory codification);
Executive Square Office Building v. O’Connor and Associates, Inc.,
19 B.R. 143, 147-48 (Bankr.N.D.Fla.1981) (examining Florida’s statutory and equity based leasehold anti-forfeiture law). Other states, such as Alabama, which adopted by case law equitable relief in limited circumstances from lease forfeitures do not have similar legislation to accomplish the same end. See Ala.Code §§ 35-9-1
et seq.
(1991).
These antiforfeiture case law and statutory provisions are how certain courts have utilized the Bankruptcy Code to alter what state law necessitates. They treat nothing more than the possibility of such relief under either a statute or case law as making the termination of a lease and the estate conveyed not final regardless of whether the lessee-debtor could demonstrate entitlement to relief from forfeiture under the jurisdiction’s laws. It is simply the potential for such relief under state law, not one’s entitlement, which is the basis on which pre-bankruptcy terminated residential leases of real property are asserted to be unexpired for § 365(a)
&
(d)(2) assumption. No degree of proof is required showing that the debtor-lessee could ever fall within either the statutory or equitable case law prerequisites for relief from forfeiture.
Furthermore, these courts treat the state law based prerequisites to relief from a forfeited leasehold as if they are simply the curing of a default under an existing contract, not as a contract which does not exist absent relief from the state law status that the lease and possessory right thereunder were ended pre-bankruptcy. See, e.g.,
In re Ross,
142 B.R. 1013, 1016-17 (S.D.Fla.1992);
In re Atkins,
237 B.R. 816, 819 (Bankr.M.D.Fla.1999);
Executive Square Office Building v. O’Connor and Associates, Inc.,
19 B.R. 143, 147-48 (Bankr.N.D.Fla.1981). Effectively, these courts treat the statutory and/or equity based forfeiture relief as an interest in property constituting a portion of the bundle of interests aggregating the whole of the lease and leasehold estate and not as a separate property interest. This is a critical distinction when it comes to the existence of a lease for purposes of § 541(a) of the Bankruptcy Code. It is also one susceptible of disparate treatment under the statutes of the varying subjurisdictions aggregating the United States.
C.
Deconstructionism Scrutinized
Having outlined the methods utilized by some courts to find “unexpired” status for a residential lease of real property, what remains for this Court to do is ascertain whether any are proper. Deference to the statutory structure of the Bankruptcy Code for what is property of the estate and the
Butner
based call for reference to state law to locate a debtor’s interests in property leads to the conclusion that it is inappropriate to implement a generally applicable procedure by use of these methods
*878
for finding that a residential real property-lease ended under a jurisdiction’s laws pre-bankruptcy remains unexpired for § 365 assumption purposes. One should note that given the contract terms of a particular residential lease of real property, the relevant jurisdiction’s statutes and other laws, plus the facts of the matter before a court, what are being used by some courts as general rules applicable to all residential real property lease assumptions may lead to a correct result under a particular collection of legal and factual circumstances. The point is that the differences between (i) each jurisdiction’s laws — which often vary within a state, (ii) the contract terms, and (iii) the facts necessitate a case by case resolution of assumability of residential real property lease under 11 U.S.C. § 365 (a)
&
(d)(2). This is precisely what the methods outlined above avoid. To better understand the problems inherent in the methodologies implemented, review of each in the context of cases utilizing one or more is warranted. It also demonstrates why each is inapplicable to the Moore-Daniels-Farrington Apartments disputes.
(1)
Plain Meaning, Linguistics, and Ex-pressio Unius Est Exclusio Alteri-us
— Not
So Plain or Included
(a)
Linguistically Indeterminate, that is, Not Plain
To allow assumption of a lease of residential real property, part of what is relied on under a so-called plain meaning interpretation of portions of the Bankruptcy Code in conjunction with the statutory interpretation maxim of expressing one excludes the other is the wording of 11 U.S.C. § 365 (c)(3) & (d)(2):
(c) The trustee may not assume or assign any executory contract or
unexpired
lease of the debtor, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties, if—
Hi #
*
H* H*
(3) such lease is of
nonresidential real property
and has been
terminated
under applicable nonbankruptcy law prior to the order for relief; ...
H» H* H» H> H» H*
(d) ... (2) In a case under chapter 9,11, 12, or 13 of this title, the trustee may assume or reject an executory contract or
unexpired lease of residential real property or of
personal property of the debtor at any time before the confirmation of a plan but the court, on the request of any party to such contract or lease, may order the trustee to determine within a specified period of time whether to assume or reject such contract or lease.
11 U.S.C. § 365 (c)(3) & (d)(2) (emphasis added). It is argued that a distinction is proven by the use
of
“unexpired” for assumption of leases of residential real property in § 365(d)(2) versus “terminated” in § 365(c)(3) for the nonassumability of leases of nonresidential real property.
Further support for this supposed distinction in the statute’s usage is premised on § 362(b)(10)’s language for placing outside the automatic stay’s zone of protection any act by a lessor with respect to a lease of nonresidential real property “... terminated by the expiration of the stated term ...” before or during a bankruptcy case. The implication proffered is that terminated by expiration means a lease ended by running to the end of the original term stated, not one shortened by some act of a lessor.
Similarly, the wording of § 541(b)(2) for excluding nonresidential real property leases from property of a bankruptcy estate is recited for its usage of “... terminated at the expiration of the stated term
*879
.... ” Again, Moore-Daniels and the authorities on which they rely reason that “terminated at the expiration” refers to leases which have run the full course of the original time period set forth in a lease, not one set by a default which allows the ending of a lease at a date earlier than the one originally fixed. These are some of the factors which it is contended demonstrate why “terminated” is not identical under a plain meaning interpretation as “expired” and results in the argued conclusion that pre-bankruptcy terminated residential leases remain “unexpired” post-bankruptcy. These are plain meaning arguments using these words as a non-lawyer might. It is their non-specialized, everyday usage on which this argument rests.
The debtors in the cases before this Court further contend that “expired” and “terminated” as used in these subparts of the Bankruptcy Code are not “precisely synonymous” because to treat them otherwise makes § 365(c)(3) (nonassumability of nonresidential lease terminated pre-bank-ruptcy), 11 U.S.C. § 541 (b)(2) (exclusion of nonresidential lease from property of the estate when ended before filing of bankruptcy or after filing of the bankruptcy case), and 11 U.S.C. § 362 (b)(10) (nonap-plicability of automatic stay of § 362(a) to acts of lessor regarding nonresidential lease terminated by expiration of stated term before or after filing of bankruptcy case) unnecessary and superfluous. Other than by the assertion of unnecessary and superfluous, just why this is so is not further enunciated. If one pauses to think about this argument, those proffering them are essentially discussing the argued difference in meaning of terminate and expire/expiration as used in these statutory provisions. It is an argument of their specialized or technical usage within three sections of the Bankruptcy Code. This plain meaning argument is different from the others asserted in this respect.
Not willing to rest their arguments on just these factors, Moore and Daniels also turn once more to the layperson’s usage of terminate and expire as defined by sources of English usage and the specialized use of one by reference to legal usage sources. Again, this is two different versions of plain meaning’s determination. Proof that each has a separate and distinct meaning is supposedly revealed by reference to dictionary and state law definitions of these words. It is posited by the case law citations used by Daniels and Moore that their usage is not interchangeable. To demonstrate this definitional difference, at least three sources are recited:
Webster’s II New Riverside University Dictionary
454, 1194 (1998),
Black’s Law Dictionary
579, 1471 (6th ed.1990), and
Vizard Inv. Co. v. Mobile Fish & Oyster Co.,
197 Ala. 625 , 73 So. 328 (1916).
Review of one of the definition citations proffered to this Court joined with use of a more complete source of English usage shows that their layperson’s plain usage proposition is not so plain. Although it is accurate that one may be used to denote something which comes to an end, i.e., expires, and the other may mean something which is brought to an end, i.e., terminates, one of the cited repositories of these definitions for expire and terminate,
Webster’s II New Riverside Dictionary
454, 1194 (1988), undercuts the argument that expire may not include terminate within its usages. Expire is defined as “... [t]o come to an end: terminate .... ” This source of authority also has this as a meaning of expiration: “1. The act of coming to a close: TERMINATION....”
Webster’s II New Riverside Dictionary
454 (1988).
Moreover, a highly regarded and authoritative source of English usage is the
*880
Oxford English Dictionary.
A cursory review of its cites to the usages of expire reveals that, contrary to the Daniels-Moore assertion that expire is always intransitive, it is used as both a transitive and intransitive verb. One of the delineated usages of expire is “... to terminate. ...” 5
Oxford English Dictionary
568 (2d ed.1989). Thus, the argument that expire and terminate are not synonymous is not supported by resort to a layperson’s usage. In fact, each dictionary demonstrates that, depending on the context, both may be used as a synonym for the other.
Added to their sources for usages of unexpired and terminate to support their plain meaning contentions is how the Supreme Court of Alabama construed expiration in a 1916 opinion while determining whether one may receive double the amount of annual rent under the predecessor to Ala.Code § 35-9-100(3), Ala.Code 1907 § 4273 (1907), captioned “Damages for Detainer after Expiration of Term of Lease.” The case referenced is
Vizard Inv. Co. v. Mobile Fish & Oyster Co.,
197 Ala. 625 , 73 So. 328 (1916). It is inapt to use a state court decision of what expiration is for purposes of a state statute as indicating what is an unexpired lease of residential real property assumable under § 365(a)
&
(d)(2) of the Bankruptcy Code, 11 U.S.C. § 365 (a) & (d)(2) and a terminated lease of non-residential real property under 11 U.S.C. §§ 362 (b)(10)
&
541(b)(2). Instead, the determination of what is an unexpired lease for § 365(c)(3), and a terminated lease for §§ 362(b)(10) & 541(b)(2) is one governed by federal law. See
Jerome v. United States,
318 U.S. 101, 104 , 63 S.Ct. 483, 485 , 87 L.Ed. 640 (1943);
Prudence Realization Corp. v. Geist,
316 U.S. 89, 95 , 62 S.Ct. 978, 982 , 86 L.Ed. 1293 (1942);
Meade Township v. Andrus,
695 F.2d 1006, 1009 (6th Cir.1982); see also
Palmore v. First Unum,
No. 1010802, 2002 WL 1398015, at *2 (Ala.2002).
Joined with these problems with the plain meaning interpretation urged by Moore and Daniels via rebanee on
Talley
and
Morgan
for one or more of their plain meaning contentions are other reasons why each is, at a minimum, not unambiguous support for their arguments. Any reading of “terminated” as used in § 365(c)(3) is susceptible of meaning either or both a lease which ends on the original date specified in a lease or one ended before such a date due to one’s default or other cause. So, too, for § 362(b)(10)’s terminated by expiration of the stated term phraseology. It may be read to be (i) the arrival of the stated date, e.g., March 1 of a given year, or a specific period from a fixed starting date, (ii) when the lessor by contract right may end the term on the occurrence of an event such as for a default, or (iii) when the contract specifies an act or occurrence by a third party or outside cause which ends the lease, such as by condemnation or destruction of leased property. This applies equally to any reading of § 541(b)(2). The stated term of a lease may be either (i) one either fixed and known or calculable at the time of contracting, or (ii) one which by the terms of the contract is not fixed, known, or calculable, but occurs on the happening of certain events, again destruction of the leasehold estate or its condemnation, or by action of a lessor when provided for by the contract terms such as a default by the lessee.
All of this discussion leads to the conclusion that Moore, Daniels and their authorities’ contentions do not clearly and unequivocally support plain meaning as a basis for resolution of whether a state law ended residential real property leasehold may yet be property of one’s bankruptcy estate and assumable. Rather and the
*881
better argument, if not the opposite of the plain meaning utilized in
Talley
and
Morgan ,
is that when one relies on such a statutory construction argument its limitations should be understood. One is:
... it might at some times in some domains be useful to take plain meaning as presumptively controlling in interpreting statutes, what is the “plain meaning” that is to have this force? Here it is important to start with a caveat and then draw a few distinctions. The caveat is that no sensible defense of a plain meaning approach takes it to be applicable to all items of statutory language, since many are simply not plain. The degree of plainness, that is the degree of convergence of extension of language among readers of that language, is just that — a matter of degree. At one end of this spectrum of determinacy, it is implausible to suppose that linguistically indeterminate language, language in which there is limited convergence of interpretation within the field of likely interpreters, can be interpreted according to a plain meaning approach.
Frederick Schauer,
The Practice and Problems of Plain Meaning: A Response to Aleinikoff and Shaw,
45 Vand. L.Rev. 715, 737-38 (1992).
Essentially, the Moore-Daniels plain meaning arguments in the Bankruptcy Code context of assumability or not of residential leases of real property are, at the least, on the linguistically indeterminate side of the usage scale. This vitiates the ability of one to urge “plain meaning” as support for what Moore and Daniels seek
21
and what
Talley ,
and
Morgan ,
and their followers contend.
Perhaps the part of this methodology used to achieve assumption status for pre-bankruptcy terminated residential real property leases which supports that the declared plain meaning is not so plain is its utilizers’ reliance on another statutory interpretative device. For if the language was so plain in meaning, why is resort to another interpretation mechanism necessary? It should not be necessary. See, e.g.,
JC Produce, Inc. v. Paragon Steakhouse Restaurants, Inc.,
70 F.Supp.2d 1119, 1121-22 (E.D.Cal.1999). Contra
Chesapeake & Ohio R. Co. v. U.S.,
571 F.2d 1190 , 1194 (D.C.Cir.1977). Added to these problems with the plain meaning sort of interpretation is the rejection of these arguments by a Circuit Court of Appeals which initially accepted as accurate in a portion of its
dictum
some of the other parts of the deconstruction methodologies.
22
In
Robinson v. Chicago Hous
*882
ing Authority (In re Robinson),
54 F.3d 316, 320 (7th Cir.1995), while rejecting such usage differentiation between terminate and expire, the Seventh Circuit sets forth in its opinion:
Hence we conclude that federal bankruptcy law draws no meaningful distinction between “expired” and “terminated” residential leases and does not provide greater federal protection for lessees under residential leases, the stated terms of which have not run, even though they may have been otherwise terminated.
Instead the federal law allowing “unexpired” leases to be assumed calls for a determination whether a lease has ended under state law.
(Citations omitted and emphasis supplied.)
(b)
Exclusion/Inclusion
Premised on the “terminated” in § 365(c)(3) which details the exclusion from assumption of nonresidential real property leases which end before a debtor-former lessee’s filing of bankruptcy, Moore and Daniels further argue that the absence of verbiage to include pre-bankruptcy terminated residential leases within § 365(c)’s or a similar statutory limitation on assumption evidences that pre-bankruptcy terminated residential leases are assumable. In other words, the exclusion of terminated nonresidential real property leases evidences the inclusion of residential real property leases. This argument, however, does not address how § 365 may be utilized to make a lease and leasehold estate ended pre-bankruptcy property of a debtor’s estate within 11 U.S.C. §§ 541 (a), 1306(a).
This § 365(c)(3)-§ 365(d)(2) argument is mimicked for § 362(b)(10). It is that the expression that acts of a lessor regarding terminated nonresidential real property leases as excluded from being enjoined by the automatic stay means acts of a lessor regarding similarly pre-bankruptcy ended residential real property leases are subject to the statutory injunction’s reach. There is an assumption implicit in this argument which is not supported: if such acts of a lessor are subject to the automatic stay for residential real property leases, the lessee has a property interest which is a lease and leasehold estate. The problem is that the lessee may be a tenant at sufferance or similar tenant with no property interest in a lease or leasehold estate. Acts against the former lessee to force such a bankrupt to vacate the residential real property are stayed under 11 U.S.C. § 362 (a)(6) even if the debtor has no lease or leasehold estate.
Identical to their § 365(c) and § 362(b)(10) claims is that made for § 541. Moore and Daniels postulate that § 541(b)(2)’s stated exclusion of pre-bank-ruptcy terminated nonresidential real property leases from being property of the estate demonstrates inclusion of similarly terminated leases of residential real property within § 541(a)’s property of the estate. Just as with the plain meaning interpretations asserted, these exclusion of one, means inclusion of the other founded arguments do not rest on references to legislative history. All that Moore, Daniels, and their cited authorities,
Talley, In re Yardley,
77 B.R. 643 (Bankr.M.D.Tenn.1987),
Morgan ,
and those courts adopting their rationale, do is argue variations of
expres-sio unius est exclusio alterius
without examination of the legislative history for
*883
these statutory provisions. Contrary to the maxim argument used, the legislative history of the 1984 enactment of §§ 362(b)(10), 365(c)(3), & 541(b)(2) set forth
infra
indicates Congress addressed only the perceived problem relating to nonresidential real property leases. There is no reference to residential real property leases. It is most significant that the previously recited legislative history is devoid of any indicated legislative intent and attempt to include as property of the estate under §§ 541(a) & 1306(a) any pre-bank-ruptcy ended residential real property lease. See H.R.Rep. No. 98-882 (1984); S.Rep. No. 98-65 (1983); S.Rep. No. 98-55 (1983); H.R.Rep. No. 98-9 (1983). See also S.Rep. No. 95-1106 (1978); S.Rep. No. 95-989 (1978), U.S.Code Cong. & Admin.News 1978, 5787; H.R.Rep. No. 95-595 (1977), U.S.Code Cong. & Admin.News 1978, 5963.
There are other problems with these statutory interpretation assertions. Resort to the legislative history for the 1984 addition of subsections 362(b)(10), 365(c)(3), and 541(b)(2) evidences that it does not support the proposition that delineating only nonresidential real property lease interests as excluded from each section’s operation evidences the inclusion of former interests of a debtor under residential real property leases ended pre-bank-ruptcy as property of a debtor’s bankruptcy estate under 11 U.S.C. § 541 (a) which may be assumed as an unexpired lease under 11 U.S.C. § 365 (a) & (d)(2). Rather, the legislative history is contrapositive to these maxim and usage claims and demonstrates a different statutory purpose was intended. Moreover, a review of this legislative history exposes that terminate and expire were used as interchangeable.
The drafters of the 1984 amendments wanted, in the context of nonresidential real property leases involving a debtor, to enable a lessor to recover property which had been subject to a lease ended pre-bankruptcy and relet it without further delay caused by a debtor’s bankruptcy filing. In part, each was enacted to accelerate a lessor’s ability to relet.
Language of the extant legislative history is:
[ 11 U.S.C. § 541 (b)(2)] amends Section 541 of Title 11, United States Code, to make clear that the debtor’s interest in property subject to a non-residential lease which has expired by virtue of its own terms is not property of the estate and that a proceeding to obtain possession of such property is not automatically stayed by Section 362 of the Code.
This amendment is intended to permit landlords to proceed promptly in state court to reclaim possession of non-residential leased premises where such lease has
expired
by its own terms, i.e., because a specified
termination
date of the lease has been reached. This change is intended to facilitate the ability of the landlord to re-lease non-residential space to another tenant as soon as possible.
‡ ‡ ‡ ‡ # #
S.Rep. No. 98-65 (1983) (emphasis added).
Section 541(b)(2) was added by § 363(a) of the Leasehold Management Amendments within the Bankruptcy Amendments and Federal Judgship Act of 1984 to clarify that there is excluded from property of the estate “any interest of the debtor as a lessee under a lease of nonresidential real property that has
terminated at the expiration
of the stated term of [the] lease_”11 U.S.C. § 541(b)(2) (emphasis added).
23
This exclusion includes any in
*884
terest of a debtor as lessee under a lease that terminates by its terms after the commencement of the bankruptcy case. See P.L. 98-353, 1984 H.R. 5174. That for 11 U.S.C. § 365 (c)(3) is:
Section 365(c)(3) has been added to provide that the trustee may not assume or assign an unexpired non-residential lease if “such non-residential lease has been terminated under state law prior to the order for relief.”
The purpose of this amendment is to provide that an
unexpired
non-residential lease may not be assumed by a trustee, if such lease has been
terminated
by a state court judgment or otherwise under state law prior to the order for relief.
S.Rep. No. 98-65 (1983) (emphasis added).
In addition to this legislative history (i) establishing the purpose of the 1984 amendments to §§ 362(b)(10), 365(c)(3), & 541(b)(2) to facilitate reletting of nonresidential real properties and (ii) revealing no intent to include pre-bankruptcy ended residential real property leases as either property of the estate or assumable, it demonstrates that the language used in the legislative history for the amendments adding subsections 362(b)(10), 365(c)(3), and 541(b)(2) treat “expired” as including within its definition “termination”: “... where such lease has expired by its own terms, i.e., because a specified
termination
date of the lease has been reached and “... an
unexpired
... lease may not be assumed by a trustee, if such lease has been
terminated
....” S.Rep. No. 98-65 (1983) (emphasis added). This is the opposite of the Moore-Daniels contention that an unexpired lease is one which has not been terminated. This is but one more aspect of why the plain meaning founded argument is incorrect. Thus, neither the plain meaning asserted, nor the maxim that exclusion of one evidences inclusion of the other offer the support urged by Daniels, Moore, and those cases on which they rely for these arguments such as
Talley, Yardley,
and
Morgan .
(2)
The Glenn Foreclosure Analogy
(a)
Derivation and Implementation
The use of an analogy to the disposition of mortgaged real property at a foreclosure sale appears to have been modeled on a portion of
In re Glenn,
760 F.2d 1428 (6th Cir.1985), in which the Sixth Circuit sets forth that “[t]he event we choose as the cut-off date of ‘... the statutory right to cure defaults is the sale of the mortgaged premises.’ ”
24
This mortgage foreclosure sale rule was adopted as one of general application within the Sixth Circuit.
In re Glenn,
760 F.2d at 1435. This cut-off point was chosen based on various reasons, some policy, some not. One of
*885
the Sixth Circuit’s panel’s concerns was the variation between the laws of the jurisdictions within the circuit and a search for uniformity. The Sixth Circuit stated:
In so ruling we avoid any effort to analyze the transaction in terms of state property law. Modern practice varies so much from state to state that any effort to satisfy the existing concepts in one state may only create confusion in the next. Thus, in construing this federal statute [to find the cut-off point before which one may cure defaults under a mortgage], we think it unnecessary to justify our construction by holding that the sale “extinguishes” or “satisfies” the mortgage or the lien, or that the mortgage is somehow “merged” in the judgment or in the deed of sale under state law.
In re Glenn,
760 F.2d at 1436.
At the time of the
Glenn
decision, this cut-off point was selected, at a minimum, arguably in derogation of the longstanding, federalistic in structure, analytical rule recited by the Supreme Court in
Butner
that property interests are created and defined by state law unless some federal interest requires a different result.
Butner v. U.S.,
440 U.S. 48, 54-55 , 99 S.Ct. 914, 917-18 , 59 L.Ed.2d 136, 141-42 (1979). Since it was a generalized, one fits all rule set without reference to any state’s laws, its use could cause a real property interest ended under state law before one files bankruptcy to be treated as “property of the estate.” This would occur when the laws of a jurisdiction fix the ending of all of one’s interests, both legal and equitable, in mortgaged real property at a place different than that selected by the Sixth Circuit in
Glenn.
When this happens, it also makes redemption of a real property interest extinguished under state law pre-bank-ruptcy as if it was the curing of a default with respect to an interest in real property which existed under state law as of the filing of one’s bankruptcy case. Depending on the type of foreclosure, private sale or by judicial decree, and on whether by statute the right of equitable redemption has been changed from what was its common law derivation, redemption may be under state law either (i) an interest in the realty which could be treated as the curing of a default for national bankruptcy law purposes, or (ii) a property interest separate from the real property where its exercise would not be the curing of a default.
Essentially, the
Glenn
rule for mortgaged property collapsed the potentially differing state law based places where one loses all interests, legal and equitable, in the mortgaged real property into one for use in all jurisdictions within the Sixth Circuit. At least until 1994, the difficulty with such a one rule for all cases was that if this rule does not reflect the legal status under one or more state’s laws, it creates a context where bankrupt debtor-mortgagors are treated as having either greater or lesser property rights than similar, non-bankrupt, debtor-mortgagors who default. To the extent that the
Glenn
rule set the ability to cure a mortgage default at a later point than state law, it modified the state law founded property interests for a bankrupt-mortgagor making them greater than those of a nonbankrupt debtor-mortgagor residing in the same jurisdiction. Conversely and should the
Glenn
fixed point cut off the ability to cure be before what state law allows, it shrinks the bundle of property interests of a bankrupt-debtor vis-a-vis what a nonbankrupt debtor-mortgagor who defaults.
25
*886
(b)
Rebuffed Basis for Comparable Rule
Although this differentiation wrought by the
Glenn
bright line rule for all such cases has become by later legislation an historical anecdote for mortgages involving a Chapter 13 case debtor,
Glenn’s
rule making approach was structured precisely as another one rejected by the Supreme Court in
Butner. Butner
entailed resolution of a split among the Circuit Courts of Appeals. The Third and Seventh Circuits adopted a federal rule based on equity powers of a court that afforded mortgagees a security interest in rents pre-foreclo-sure even if a state’s laws would not until the foreclosure. In contrast, five other Circuit Courts of Appeals had held that the existence of such a security interest in rents was to be determined by state laws. This created different outcomes in “title theory states” where the mortgagee has a security interest in rents without taking actual or constructive possession of the property versus other states which predicated a mortgagee’s right to rents on obtaining actual or constructive possession.
Butner,
440 U.S. at 52-53 , 99 S.Ct. at 916-17 , 59 L.Ed.2d at 140-41 .
In rebuffing the bright line, one rule for all jurisdictions approach adopted by the Third and Seventh Circuits, the Supreme Court used language with direct applicability to how (i) the
Glenn
court reached its ruling, and (ii) the analogous leasehold ending bright line rule was adopted using the
Glenn
methodology. The Supreme Court’s words in relevant part were:
Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving “a windfall merely by reason of the happenstance of bankruptcy.”
Lewis v. Manufacturers National Bank,
364 U.S. 603, 609 , 81 S.Ct. 347 , 5 L.Ed.2d 323 [(1961)]. The justifications
*887
for application of state law are not limited to ownership interests; they apply with equal force to security interests, including the interest of a mortgagee in rents earned by mortgaged property. [Footnote omitted.]
The minority of courts which have rejected state law have not done so because of any congressional command, or because their approach serves any identifiable federal interest. Rather, they have adopted a uniform federal approach to the question of the mortgagee’s interest in rents and profits because of their perception of the demands of equity. The equity powers of the bankruptcy court play an important part in the administration of bankrupt estates in countless situations in which the judge is required to deal with particular, individualized problems. But undefined considerations of equity provide no basis for adoption of a uniform federal rule affording mortgagees an automatic interest in the rents as soon as the mortgagor is declared bankrupt.
In support of their rule, the Third and Seventh Circuits have emphasized that while the mortgagee may pursue various state-law remedies prior to bankruptcy, the adjudication leaves the mortgagee “only such remedies as may be found in a court of bankruptcy in the equitable administration of the bankrupt’s assets.”
Bindseil v. Liberty Trust Co.,
248 F. 112, 114 (3rd Cir.1917). [Footnote omitted.] It does not follow, however, that “equitable administration” requires that all mortgagees be afforded an automatic security interest in rents and profits when state law would deny such an automatic benefit and require the mortgagee to take some affirmative action before his rights are recognized. What does follow is that the federal bankruptcy court should take whatever steps are necessary to ensure that the mortgagee is afforded in federal bankruptcy court the same protection he would have under state law if no bankruptcy had ensued. This is the majority view, which we adopt today.
Butner,
440 U.S. at 55-56 , 99 S.Ct. at 918 , 59 L.Ed.2d at 141-42 . This quotation highlights a flaw in the
Glenn
analysis: use of equity or generalized policy concerns such as the perceived need in uniformity of outcome by federal courts in different states in determining property interests is not, absent a sufficient federal interest to the contrary, licensed. Recognition of this analytical problem for what is the proper basis for a jurisdiction wide, one rule for all cases highlights the existence of an identical one created by use of an analogy to
Glenn’s
methodology to fashion a generalized rule for all lease and leasehold endings.
In the context of mortgage foreclosures involving a Chapter 13 debtor, this potential disparate treatment was eliminated by the 1994 amendments to § 1322 of the Bankruptcy Code which added, among other subsections, what is now 11 U.S.C. § 1322 (c) which provides:
Notwithstanding subsection (b)(2) and applicable nonbankruptcy law—
(1) a default with respect to, or that gave rise to, a lien on the debtor’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law; and
(2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the
*888
payment of the claim as modified pursuant to 1325(a)(5) of this title.
What this amendment does is make the national law, instead of state law, set the point at which a Chapter 13 debtor loses the ability to cure defaults with respect to mortgaged property. Effectively and consistent with that which was contemplated by the Supreme Court of the United States in
Butner
and
Barnhill ,
a controlling national interest was identified by legislative action — not judicial decision— which (i) superceded contrary state laws on the ending point for curing defaults which of necessity would encompass the continued existence of some interest in mortgaged/liened real property, and (ii) may require a different result in some jurisdictions than state law would reach. See
Butner,
440 U.S. at 54-55 , 99 S.Ct. at 917-18 , 59 L.Ed.2d at 141-42 . It is more than noteworthy that during the over twenty-three plus years since the effective date of the Bankruptcy Code no comparable statutory change was wrought by legislative action creating a national law on when all residential leases and leasehold interests are ended.
26
In the absence of a similar, explicit statutory change for residential real property leases constituting a debtor’s principal residence, the use of a so-called analogous cut-off point setting rationale presents the same failure to differentiate between that which ended pre-bankruptcy versus that which was a property interest under state law on one’s commencement of a bankruptcy case. It disregards the
Butner, et al.
principle of reference to state law for what interests in property a debtor held by making one point the only one for determining when a lessee no longer holds any interest in a leasehold estate. It thus modifies by judicial decision in many cases what state law sets as the ending of all interests in such residential real property leaseholds.
(c)
Seminal Bankruptcy Cases at Variance with Underlying State Law
Some of the seminal cases which use the
Glenn
mortgage cut-off rule as the source of the analogy for selection of the point at which a residential lease of real property becomes expired for § 365(a) purposes include
In re Yardley,
77 B.R. 643, 644-45 (Bankr.M.D.Tenn.1987);
In re Talley,
69 B.R. 219, 224-25 (Bankr.M.D.Tenn.1986) (fixing execution of writ of possession by service on the tenant as the only “measurable [and] identifiable” point for the termination of the landlord-tenant relationship under Tennessee law and holding the residential lease not “expired” until the occurrence of the service of the writ of possession);
In re Shannon,
54 B.R. 219, 220 (Bankr.M.D.Tenn.1985) (same point selected and citing to unpublished decision of
Smith v. Morrese Karr Realty Co.,
Case No. 380-01112, Adv. Pro. No. 380-0323 (Bankr.M.D.Tenn.1980) for the same lease ending proposition). Since each of these cases is from Tennessee, a review of Tennessee’s laws on ending of leasehold estates demonstrates the problem inherent in this one rule fits all approach for residential leases of real property.
*889
Examination of opinions of the Supreme Court of Tennessee establishes that different rules for the “expiration” of residential leases have existed for Tennessee leasehold interests. Although in 1975 Tennessee enacted its version of the Uniform Residential Landlord and Tenant Act (URLTA), Tenn.Code Ann. §§ 66-28-101
et seq.
(2001), it is applicable for lease termination governing purposes in only some Tennessee counties. TenmCode Ann. § 66-28-102 (2001); see
Crawford v. Buckner,
839 S.W.2d 754, 755 (Tenn.1992). In part, it is the URLTA’s geographical limits on applicability which causes termination of residential leases in some counties to be governed by the same Tennessee laws applicable to nonresidential leases.
Like other states which have a common law founded legal system and early in Tennessee’s existence as a state, it enacted an unlawful detainer statute to avoid, among other things, violence between a landlord and tenant which often occurred when a landlord attempted to end the tenant’s estate, i.e., cause forfeiture of the leasehold estate to be effective. Prior to the 1821 enactment of the first unlawful detainer statute in Tennessee, and to enforce forfeiture of a leasehold which marked the end of the landlord-tenant relationship and extinguished the tenant’s interest in the estate conveyed by a lease, the lessor had to re-enter or take possession of the leased property from the lessee.
The Cain Partnership, Ltd. v. Pioneer Investment Services Co.,
914 S.W.2d 452, 456-58 (Tenn.1996);
Matthews v. Crofford,
129 Tenn. 541 , 167 S.W. 695 , 698-99 (1914).
This common law rule was modified by the enactment of unlawful detainer. The Tennessee Supreme Court has repeatedly recognized that it is the commencement of an action for unlawful detainer which is the legal substitute for personal entry or retaking of the leasehold premises by a landlord.
The Cain Partnership,
914 S.W.2d at 463-64 ;
Matthews,
167 S.W. at 698. For enforcing forfeiture of a lease, re-entry has been held to be on the service of process of the unlawful detainer suit— not execution of the writ of possession. For over a century, Tennessee law has not required the physical retaking of leased property in order to end every landlord-tenant relationship and the estate conveyed by the lease.
Matthews,
167 S.W. at 698; see
The Cain Partnership,
914 S.W.2d at 463-64 . Thus, the
Talley, et al.
adopted one rule for all residential lease endings has not been and is not Tennessee law for when all residential leases and all residential leasehold interests are ended.
For some, it is on service of the complaint in an unlawful detainer action.
Matthews,
167 S.W. at 698; see
The Cain Partnership,
914 S.W.2d at 463-64 . For others, the ending of the leasehold interest and lessor-lessee relationship may be earlier. This arises from the Tennessee Court’s enforcement of contract terms selecting an ending point such as on the giving of notice of a default where such a default is by contract a basis for ending the lease and estate conveyed. See
The Cain Partnership,
914 S.W.2d at 459 (In rejecting the continuation of common law rules for terminations of nonresidential leases involving one which did not expressly make nonpayment a basis for termination, Tennessee Supreme Court (i) adopts the view that
"...
parties’ rights and liabilities should turn on an interpretation of the lease, the conduct of the parties, and rules which are consistent with modern business practice”, (ii) makes the Restatement of Property (Second), § 13.1 (1977) applicable to commercial leases, and (iii) allows termination of leases not containing language making nonpayment of rent a basis for termination on the passage of a reasonable time following notice of demand within which to pay or vacate.);
*890
see also,
In re Memphis-Friday’s Associates,
88 B.R. 830, 834-37 (Bankr.W.D.Tenn.1988). Effectively, the Tennessee Supreme Court has recognized that in many Tennessee lease terminations it is a legal fiction that re-entry or taking of possession is required before termination of a lease is effective. The result is that any argument predicated on the abandoned concept of the necessity of a lessor’s physical re-entry/taking of possession for all lease/leasehold terminations is no longer utilizable to demonstrate that absent such an event a lessee’s leasehold estate interests are not ended.
To similar effect is the Tennessee Supreme Court’s interpretation of its URL-TA. Under the URLTA, the ending of a residential lease for material noncompliance, including nonpayment of rent, is effective upon the expiration of the advance notice period without payment of rent arrears even if the lease does not have wording expressly reserving the right to terminate the lease. See
The Cain Partnership,
914 S.W.2d at 457-58 .
What is demonstrated by a reading of
The Cain Partnership
is the evolution in Tennessee of how one ends the landlord-tenant relationship and a tenant’s interest in any estate of real property conveyed. It has been to make the process easier and earlier — frequently by contract much earlier — than the point of physical retaking of possession of the leasehold estate by a lessor from the lessee. Thus under Tennessee law, the ending of a lease will vary by the terms of the contract and the applicable facts and law. Of necessity, this means the moment of the ending of the lease and leasehold estate will not be the same for all leases and leaseholds. The corollary is that adoption and use of one rule for all residential lease terminations may either expand or contract the property interests of a bankrupt-lessee from what
Butner, Barnhill,
and their progeny have held as the means for ascertaining what property interests a bankrupt debtor held as of filing bankruptcy.
The point of this discussion of Tennessee law is not to assert that the general rule espoused in
Talley
and
Yardley ,
and other cases within Tennessee and outside Tennessee, like
Morgan ,
following this so-called bright line rule for application to all residential lease cases is always incorrect. Rather, it is to point out that in the absence of a clear and unequivocal statement of federal law mandating a different result such as that evidenced by the statutory change wrought for mortgaged residential real property interests by the 1994 amendment now set forth in 11 U.S.C. § 1322 (c), the extension of the mortgage analogy argument to leases causes a similar problem in the leasehold arena to that created at the time of the
Glenn
decision. The error for leasehold estates is the same as that which existed until 1994 for mortgaged interests of real property: expansion or contraction of a debtor’s property interests from those held under state law by use of a judicially created one rule fits all approach.
In those cases in Tennessee and elsewhere which adopt either the execution of a writ of restitution, see, e.g.,
In re Morgan,
181 B.R. 579 (Bankr.N.D.Ala.1994), or execution of the writ of possession following entry of judgment in an unlawful de-tainer action, see, e.g.,
In re Talley,
69 B.R. 219 (Bankr.M.D.Tenn.1986), as
the
point where all of a residential lessee’s property interests are ended for assumption purposes under 11 U.S.C. § 365 (a) & (d)(2), and where under state law these interests ceased to exist pre-bankruptcy at an earlier point, no interest in property constituting a residential lease would exist under state law. Yet,
Talley
in Tennessee,
Morgan
in Alabama, and their followers
*891
must find an interest in real property which becomes “property of the estate” under § 541(a) before any residential lease of real property could be assumed under § 365(a) & (d)(2). This has been done via the
Glen

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1525993. Public record. Not legal advice.