Abstract
The recharacterization of leasehold interests as mortgages has several hundred years of history and doctrinal development that focuses on the intent of the parties. Bankruptcy cases, however, have recently abandoned this body of law, replacing it sub silentio with a federal economic substance test derived from an amalgam of tax and personalty recharacterization cases. This test is not only inconsistent with established state property law but, worse, is inherently arbitrary, unpredictable, and inconsistent. I advocate a return to a test based primarily on the expressed intent of the parties in order to respect the federalist structure of our property law and bankruptcy system, reduce forum shopping, and provide predictability for contracting parties as well as for third parties who rely on the recorded state of title.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
