Send Required Notices Even If Tenant Already Has the Information

It’s important to send tenants and other parties all notices the lease requires you to provide even if you think they already know the information the notice contains. Your supposition about the tenant’s knowledge may be 100 percent correct. But even if the required notification would come as “old news,” failure to provide it may endanger your rights under the lease.  

A New York City tenant learned this lesson the hard way. A fire broke out and did serious damage in the tenant’s leased warehouse space. The tenant blamed the fire on inadequate security, specifically the landlord’s failure to restrict access to the warehouse’s second floor. And since the landlord didn’t fix the problem after the fire, the tenant was concerned about the potential for another fire or damaging incident. So, it decided to move out and stop paying rent. The landlord sued the tenant for nonpayment of rent.

The tenant claimed the space was unusable and pointed to a clause of the lease relieving it of the duty to pay rent should the premises become unusable. But the lease also said that the tenant had to give the landlord “prompt notice of fire, accident, damage or dangerous or defective condition” in writing by certified mail, return receipt requested. The tenant never provided that notice. That shouldn’t make any difference, the tenant argued, because the landlord already knew about the fire and unsatisfactory condition of the space. The tenant also pointed out that it had written the landlord a letter just before it vacated.

But what was no big deal to the tenant was a very big deal to the court. This case wasn’t about the condition of the space or what the landlord did and didn’t know, the court reasoned. The real issue was that the tenant didn’t furnish the notice required to excuse it from paying rent. The tenant’s letter to the landlord was no substitute for the “prompt notice” by certified mail that the lease required. As a result, the tenant still had to pay rent regardless of whether the space was unusable [Milltown Park Inc. v. American Felt and Filter Company, 1991 N.Y. App. Div. LEXIS 18020].