Notice

Contractual notice is one of those simple concepts that can get very complex in practice, and have draconian consequences.

Real estate law, particularly Landlord-Tenant relationships, is loaded with notice requirements. Some examples are notices to renew or extend in a commercial lease. A simple notice clause in commercial leases is in fact not as straightforward as it may seem.

“The Agreement required that all notices be ‘given’ – not ‘delivered’ or ‘received’. The same paragraph provides that notice be ‘sent’ by registered mail, thus equating ‘sent’ with ‘given’, and emphasizing the lack of requirement for actual delivery. Estate of Crossman, 231 Cal.App 2d 370, 373.” Palo Alto Town & Country Village, Inc. v. BBTC Company , 11 Cal.3d 494, ¶21

The choice of language can be determinative, for example, in the all too common case of notice (renewal, extension, etc.) that is lost in the mail. Under “given or sent” language and interpretation, a notice mailed is sufficient…even if never received, which seems to contradict the very essence of notice, and yet does give effect to the true intent of the parties if it can be proven that notice was in facts “sent.” However, under “delivered or received” language, on the very same facts, the party that mailed the notice that was lost in the mail will be deemed to have not delivered notice, because notice was in fact never received by the intended party.

These are just two wrinkles that can arise in the relatively mundane notice clause of a commercial lease. However, they are important because effective or ineffective notice can drastically alter the economic relationship between the parties.