this court our position in a nutshell is that the lower courts heard because they ordered rejection of the two leases and question to a  is that when a congressman acted the one nine hundred eighty four amendments and added section three sixty five p three to the bankruptcy code congress struck a balance congress recognized as is the case here that when the petition was filed the leases mediately became property of the estate of the debt and as a result of that and as a result of the automatic stay the landlord could dock retake possession of those spaces regardless of what used to get a wise or was not making the automatic stay prevented the landlord from we taking possession of those two spaces the landlord could not relax those two spaces close to lisa's the statement or admission by the tenants attorney that he had seen a certificate of completion for the construction well i guess i'm off the page that was or not or was not the status of the was not had not been occupied and was not being used but nevertheless the term of the leases had commenced of course now was granted being paid their landlord on that course on the premise if your honor is asking it as a practical matter it did we have a tenant ready willing and able to move in on that date and there's nothing in the record on that however the the balance that was struck  by the congress in section three sixty five the three is that the landlord is entitle to compensation while it is deprived of its property there is nothing in the statute that requires the landlord to show that it could have put a nother tenant in there earlier and this is made clear i think by this circuit's two cases two decisions and the pacific atlantic case there was there was no this court did not impose any requirement on the landlord to show that it could have relaxed the space during that sixty day period the court specifically stated that the landlord needs take no action why i asked the question because i couldn't figure out what this rant number was whether the right number was everybody's rant to buildings rant or rant of the subject property but in any case the only issue is retroactive effect that is correct and so whether you could read it or whether you could not to read it i'm not too sure i think that even applies here because the rationale has been gone on for the majority of the minority position on this after the the amendments that you talk about and thinking machine so whether or not we had immediately very willing and able tenant because the the as this court has interpreted three sixty five to three the landlord need not take any action to be entitled to the contract in its decision but more importantly thinking machines never get the side of the actual issue before this court which is whether it is legally permissible to order  retroactivity prior to the date of possession thinking machines just addressed the issue of retroactivity in the abstract and the us and subsequent through thinking machines the united states other provision of the bankruptcy code and while we have you three sixty five d three is an entitlement to administrative rent up until rejection the common thread you have it that if this goes in circles i mean retroactive application prior to the landlord's recovery of possession because what three sixty five the three the purpose of three sixty five to three was compensation for the deprivation of possession so when we reconciled the of the presidents and our brief that there can be a for example there are cases where the landlord recovered possession prior to the filing of the motion court ordered retroactivity back to the date that the hearing would have been held by for the frivolous objection and that and we go that go to the to the discretion of how you analyze the description of the bankruptcy court here we found none of those seven days it would have done it sooner but it was a holiday in between then you selected the debtors committee so i mean i don't know what if you're saying that the administrative expenses action is going to trump the provision for retroactive effect of the equitable authority or the equitable powers of the bankruptcy judge and i'm trying to hang on to what that means i mean we're the authority that says we're going to do it how do you analyze it unless you analyze what was going on and when this decision was made by the bankruptcy court say gee i think we ought to make it retroactive wealth section section one hundred five in the bankruptcy courts equitable powers are not  roving commission to reorder our priorities the very purpose of three sixty five day three was to compensate the land was to compensate the landlord for the involuntary deprivation of its property the landlord unlike other creditors creditors is put in a unique situation because it is in voluntarily deprived of the use of this property and i suppose you want to rewrite the period of the sale lest the landlord has been allowed to take  requires that in addition i have not located one case nor i specific short sighted one case that requires the return of legal possession the third problem with this standard of return of so called more technical legal possession is the exercise right to legal possession of premises and theoretically probably even seek to enforce that in the bankruptcy code if it wished to take the premises back but in any event legal possession argument has no support in either the code the case law in is feasibly unworkable the third problem sorry fourth problem with it is actually the fact that in any of them where you get or is seeking to reject a lease it is determined that it has no economic value that means either it is it above market rate and it can't be effectively or history three sixty five a three indicates that more or less has two goals one is supposed to incentivize the debtor to make a quick decision whether or not it wants to reject it particularly so the landlords not let any sort of uncertainty regarding the proposed treatment in addition it's supposed to protect the land of providing any uncompensated services during the the pre rejection period for example where the debtor is is a utilizing services or occupying the space in cam charges for example are being incurred that he would otherwise not have to pay for in the absence of three sixty five day three approach that i think is both well reasoned and i think it is appropriate and i think in i think realistically speaking as a practical matter it works and it worked in this case and i think that the bankruptcy courts discretion was appropriately  a court holiday and the third factor that the bankruptcy court considered was the fact that the debtor was not occupying the the property now if it's a question of actual possession vs legal possession  perhaps the debtor may have had some sort of an exercise right if it so chose to exercise it in their right of that to the property but i think it made clear in its rejection motion that it wanted nothing to do with this property whatsoever i believe that i guess the only abstract question i had in that regard was council indicated that when they signed the lease they signed the lease on the two buildings in this particular property was within those two buildings that's correct and then there was some reading then so the if you would have been i get the picture i get the picture i misinterpreted something about the space being far from but the river the river for the two buildings was being paid the two buildings were being renovated never occupied to do anything with these premises except reject the second issue is it doesn't require the landlord really to do anything to the extent it wants to take the premises back it doesn't have to vet the tenant it doesn't have to take out the tenants personal property there was nothing and i think ultimately this also sort of ties into two both with the bankruptcy court and the just district court found is that if pacific shores was concerned about the debtor's intent with respect to lease like three sixty five  if something like this happens again exactly the same way from the initial notice of rejection and circumstances change means i the less he decides gee i don't want to go to hearing right now because we're considering maybe we can stop with blah blah or some sort of things like presley says yeah i'm not too sure what we're doing here we had to give the notice anyway in a delays and expense to scream and those will be factored in not only in what expenses should be a lot of but maybe whether should be retroactive at all and so what you're saying when we had docs thinking machines in the first workers position that's the first step the next step is the analyze what happened in this case in this case due to your diligence that director activity application the way it and also i don't think landlords ever made any any sort of argument or assertion here that the debtor did anything to prevent it from taking back the premises there was some allusion to for example keys not being returned in the surrender no notice not being  based on the four factors and unseated by the bankruptcy court in a firm by the district court was appropriate for the bankruptcy court in the exercise of its discretion and under the specific facts of the case to order this particular lease rejected effective as of  the automatic stay did prevent his if it shores from taking actions in connection with relating the premises for example we couldn't show the premises used to a person of tenant but  if you if you have a lease section three sixty five d three does pacifically state that the trustee or getting an physician shall perform its obligations until the rejection of the lease this isn't about providing uncompensated common area maintenance services this is about deprivation of position of your property in voluntarily unlike trade creditors who can stop providing merchandise to a debtor a landlord is in voluntarily deprived of its property and that is the very purpose for which legislative history shows three sixty five d three was enacted so possession is not just a factor but the rights or rents while deprived of possession is a statutorily entitlement that the equitable power of the bankruptcy court cannot take away the gutters argument about incentivizing the landlord to act was specifically rejected in pacific atlantic the getters argument that there's no economic value to the estates was specifically rejected in section three sixty five the three which provides the right to rent notwithstanding section five zero three the one which means not standing any value to the state again there's this court held in pacific atlantic thank you castle thank you we appreciate the arguments of both parties and they've been very helpful and