Any New York commercial lease will have numerous provisions within the lease regarding notices. Every notice provision must be carefully read and understood since, under New York law, there must be strict compliance with lease notice provisions. Experienced lease negotiators are fully aware of the importance of notice provisions. Depending on the provision, the lessor or the lessee can gain a significant advantage. For example, consider the following notice provision:
Default:
In the event of the Lessee/Tenant’s default, Lessor/Landlord shall have the immediate right to declare this lease in default, enter upon the Premises, and take possession immediately.”
Under this “no-notice” provision, the lessor has a significant advantage. Compare that provision with the following:
Default:
Suppose the lessee is in default of any agreement, condition, or obligation on its part to be performed or observed under this Lease. In that case, Lessor shall send notice in writing of said default and, if Tenant fails to cure said default within sixty (60) days after notice of said default from Lessor, Lessor shall have the immediate right to declare this lease in default and to enter in upon the Premises and take possession immediately.”
As can be seen, this alternative provision provides much more protection for the Tenant. First, the landlord must send a written notice — an oral notice is not sufficient — identifying the claimed default. Second, the Tenant is entitled to a sixty (60) cure period. This means that the Tenant can try and “fix” the problem. As an example, most commercial tenants must have general liability insurance. Suppose the Tenant has failed to obtain insurance. In that case and under this provision, the landlord must send a written notice, and upon receipt, the Tenant has sixty days to get the required insurance. If the Tenant succeeds, the default is “cured,” and the landlord has no right to take possession of the leased space.
Define Notice Provisions Specifically in the Lease
Aside from what the various notice provisions say, it is also essential to focus on related notice provisions: namely, to whom the notices are to be sent and the method. In the second example, the provision requires that the notice be “in writing.” In today’s world of emails and text messages, New York courts have routinely held that emails and text messages are forms of “writing.” Thus, a notice of default emailed or sent as a text message COULD be considered a “written notice,” which would conform to the requirements of the lease.
This could be considered “good” for the landlord since the notice is sent almost instantaneously. By contrast, this could be considered “bad” for the Tenant since, if notice had to be sent via mail, that would “add” a couple of days. In the end, this should be written into the lease. If the parties want notice sent by mail, the lease should state that clearly.
The other issue that should be negotiated is the provision about to whom the notices should be sent. Every lease will have a provision that states that notices “shall be sent to … [name; address].” This is another place to clarify the method of sending the notice. If the notice is to be sent to a name and a street address, that indicates that a letter must be sent. If, on the other hand, an email address is listed, then that is a clear indication that an email is acceptable.
Contact the NYC Commercial Lease Negotiators at Wright Law Firm NYC Today
For more information, call the experienced New York commercial lease and real estate attorneys at Wright Law Firm NYC. We provide top-tier commercial real estate legal services for the NYC business community. To schedule a consultation, contact our office by email or call us at (212) 619-1500.