Don't Invalidate Notice If Your Attorney Sends It

If a tenant violates your lease but it doesn’t fall under a “chronic violations clause,” you’re probably required to notify the tenant in writing that if it doesn’t cure—that is, correct—the violation by a set deadline, you can take action against it. If you’re like many owners, you may ask your attorney to send this violation notice on your behalf—because you think that will make the tenant more apt to comply, or you’re too busy to send it yourself.

But this works only if the lease gives your attorney the right to send a violation notice or any other notices required by the lease for you. So a tenant could argue, and a court may agree, that any notices sent to the tenant by your attorney are invalid.

You can avoid notice problems. First, don’t specify anywhere in the lease the name of the attorney who can send notices on your behalf. You may decide to change your attorney during the lease, and you don’t want to have to amend your lease each time your attorney changes.

Next, in the lease’s notice clause, use a generic description of who can send the notices on your behalf. For example, say simply that your “attorney” is authorized to send notices on your behalf. And for additional protection, say that your “agents”—such as someone you’ve given a “power of attorney” to—can send notices on your behalf, too.

To do this, ask your attorney about adding the following language to your lease’s notice clause:

Model Lease Language

Notices required hereunder may be given by either an agent or attorney acting on behalf of Landlord.

Finally, in any clause but the notice clause, avoid specifying, even generically, who must send your notices. For example, in the default clause, don’t say that the tenant will have violated the lease if it “fails to pay Rent after Landlord sends notice.” Instead, say that the tenant will have violated the lease if it “fails to pay Rent after notice.” This language doesn’t contradict the language you’ve added to your notice clause.

Remember to check with your attorney about whether your state law, in notice situations, requires you to supply written proof that someone is your attorney or agent. For example, when sending a notice on your behalf to a tenant, your attorney also may have to include a letter from you indicating that you’ve authorized the attorney to send the notice.