How to Make Your Notice Valid if Your Attorney Sends It

If a tenant violates your lease, 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 if your lease is like many we've seen, it may have this troubling loophole: It may not give 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.

Notice from New York Owner's Attorney Is Invalid

For example, a New York owner had a tenant that violated the lease by failing to take out insurance. The lease said that “Landlord, after ten days' notice to Tenant,” could get the insurance itself and have the tenant reimburse it. The owner's attorney sent a written notice to the tenant, demanding payment for the policies. When the tenant refused to pay, the owner sued.

A New York appeals court ruled that it was okay for the tenant to ignore the notice from the owner's attorney. The court interpreted the requirement that the “Landlord” had to send notice as authorizing only the owner, its agent, or the owner's attorney identified by name in the lease as the parties who could send the notice. But the attorney who sent the notice wasn't the attorney named in the lease. So the notice was “ineffectual” and gave the owner no right to be reimbursed, the court said [117-07 Hillside Ave. Realty Corp. v. RKO Century Warner Theaters, Inc.].

Tips to Avoid Notice Problems

To plug this loophole, Denver attorney Mark A. Senn suggests following these three tips when drafting your lease:

1) Don't identify attorney by name as sender of notices. Don't specify anywhere in the lease the name of the attorney who can send notices on your behalf, says Senn. 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, he warns.

2) Describe sender of notices only generically in notice clause. In the lease's notice clause, use a generic description of who can send the notices on your behalf, says Senn. For example, say simply that your “attorney” is authorized to send notices on your behalf, he advises. 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, he adds.

To do this, add 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.

3) Don't specify sender of notices elsewhere in lease. In any clause but the notice clause, avoid specifying, even generically, who must send your notices, says Senn. 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,” Senn adds. This language doesn't contradict the language you've added to your notice clause, Senn explains.

Practical Pointer: 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, says Senn.

CLLI Source

Mark A. Senn, Esq.: Member, Senn Visciano Kirschenbaum, PC, 1801 California St., Ste. 4300, Denver, CO 80202; (303) 298-1122; msenn@sennlaw.com.