Retroactive Rejection of Unexpired Lease and Amount Due Under 365(d)(3). Held: (1) Equitable considerations permit retroactive approval of an unexpired lease as of a date when the landlord is in substantially the same position that it would be if the bankruptcy court had approved rejection on that date. A landlord is ordinarily in such a position on the date when it has received unequivocal notice of the estate’s intent to reject the lease and when it has the opportunity to obtain possession of the premises and to commence the reletting process. In this case, that date is ten days after the filing of the motion, in the absence of any indication that the debtor in possession had affirmatively indicated that the landlord could have possession at an earlier time. (2) The pro rata approach best reflects the Congressional purpose of § 365(d)(3) and, therefore, rent is due on a pro rata basis through April 20.
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02/06/2009