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Notice by E-mail

Note: The location of this blog will move permanently to my law firm website starting in September 2010.  This post and all prior posts have been duplicated on the new website.  The web address for the new blog site is: http://rrlawaz.com/blog/

Notice by E-mail

Notice provisions in commercial leases are typically neutral and rarely negotiated.  Nearly every lease will permit notice by personal delivery or certified U.S. Mail, and most also permit by overnight carrier (such as Federal Express) or facsimile.  Over the past few years, I have seen some leases allow notice by e-mail.  Though e-mail may be a convenient way to provide notice, the parties to the lease should consider the potential problems.

E-mail is informal.  Notices under a commercial lease are usually important (e.g., renewal notice and default notice).  When receiving a notice by personal delivery, certified U.S. Mail, Federal Express or facsimile, the recipient probably will give more attention to the notice than if by e-mail.  Personally, I receive over 100 e-mails per day.  It is easier to overlook an e-mail than the other forms of communication.  In addition, I may receive the e-mail on my blackberry and either accidentally delete it or forget to respond to it the next day.  Further, important e-mails occasionally get stuck in junk or spam mail folders.

Also, the recipient of an e-mail may not realize s/he is receiving a notice under the lease.  Consider the following example: a landlord’s property manager regularly corresponds by e-mail with the tenant.  The property manager sends an e-mail with the subject line “checking in” and the body of the e-mail states “Did you send in your rent check?  We have not received it yet.”  Does this constitute a notice of a default for failure to pay rent?  Did it properly come from the landlord?  Has the tenant’s cure period now commenced?

I have seen notice provisions require certain language in the e-mail notice, such as including “NOTICE” in the subject line and reference to a specific lease provision in the body of the e-mail.  I also have seen notice provisions provide that the e-mail notice is only valid if accompanied by another form of notice.

E-mail can be easily manipulated.  Most notices are time sensitive.  For example, a tenant may have 5 days to cure a rent default, or a tenant may have 5 days to contest a landlord’s determination of fair market rent.  I have seen others manipulate the timing of e-mails to show the e-mail was sent earlier or later than the actual time it was sent.  Further, the content of e-mails can be manipulated.  A sender could create a fraudulent “unable to deliver” or “recipient’s mailbox is full” e-mail after the fact if the sender failed to provide timely notice.  Though these examples seem unlikely and would only be used in bad faith, consider the potential for huge losses created by missing a notice deadline.

Overall, though e-mail is a convenient method for delivery of notice, it is too informal.  I recommend using the other more traditional forms for notice as stated above.

Prior to using any language or concepts from this blog entry, consult with an attorney.

Ryan Rosensteel is a real estate and construction attorney licensed in Arizona.  You can contact him at rrosensteel@rrlawaz.com.

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