Follow Special Lease Requirements for Default Notice

Before notifying a tenant that it’s in default, be sure to check the lease to see if it includes any special requirements. If so, follow those requirements to the letter, or you could end up losing your eviction and other remedy rights.

A common provision to be on the lookout for is a grace period giving the tenant a certain period of time to fix the breach before it can be deemed in default. Consider the case of the New York landlord who sent a tenant a default notice for not paying August rent. While the tenant was delinquent on August rent, the landlord sent the default notice on Sept. 2, even though the lease provided a grace period of 10 days. On Sept. 11, it sued to evict.

But the court tossed the eviction suit because the landlord didn’t follow the lease requirements. Under the lease, the tenant wouldn’t be considered in default for nonpayment unless and until it still failed to pay rent after the 10 days’ notice of default. The lease also stated that a notice would be “deemed to have been given or served” on the third day after it was sent.

Applying this language, the court ruled that the tenant wasn’t in default. The 10-day period didn’t begin until Sept. 5, three days after the landlord mailed the default notice, and didn’t end until Sept. 15. So, the landlord’s eviction suit was four days premature [McDonald Center v. Rockbottom Stores, Inc., New York Law Journal, Feb. 13, 1992].