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Is Your (Non-True) Lease a Sale?

By Edward Gross and Philip Livingston
June 28, 2007

Just in case the transaction you've just documented using your standard lease forms is not a 'lease,' you've included a granting clause in the form and filed UCC 'notice' filings. So, you've protected the lessor from a re-characterization
risk (i.e., that the transaction is deemed not to create a 'lease' under commercial law) ' right? Well, maybe not.

A recent decision by the Federal District Court for the Western District of Wisconsin reminds us of the need to draft documents that protect against the possibility that a lease may be re-characterized as a 'sale' to which Article 2 of the UCC applies. In Key Equipment Finance, Inc. v. Pioneer Transportation, Ltd., 472 F. Supp. 2d 1131 (W.D. Wis. 2007), the court found that a transaction documented as a lease was instead a sale of goods with a reservation of a security interest and that Article 2 applied to the transaction. Although the court ultimately rejected the lessee's Article 2 defenses, it did consider them.

The Key Equipment Finance decision involved a fairly standard three-party equipment financing arrangement. The equipment to be financed was communication equipment supplied by the vendor. The communication equipment was installed on lessee's trucks. To finance the purchase, lessee entered into a Master Lease Agreement and associated equipment schedules with lessor, which purchased the equipment from the vendor for the purpose of leasing it to the lessee. The agreements were drafted as 'leases.' However, the court characterized the transaction as back-to-back 'sales': '[lessor] acquired the T-Fleet Global Messenger Units from [vendor] and [lessee] acquired said units from [lessor].'

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