Protect Validity of Notice Agent Sends on Your Behalf

If a tenant violates your lease, you probably can take action against the tenant only if you first send it a written notice to cure—that is, correct—the violation by a set deadline. Like many owners, you may ask your property manager to send this violation notice on your behalf—because you usually deal with the tenant through the property manager or because you're too busy to send the notice yourself.

But if your lease is like many we've seen, it may have a troubling loophole: It may give only you and your attorney—not your property manager—the right to send any notice required by the lease. So a tenant could argue and a court could agree that any violation notice sent by your property manager on your behalf is invalid.

Notice from New York Property Manager Is Invalid

A New York owner was tripped up by this loophole when it tried to evict a tenant that had paid its rent late. The lease said that if the tenant paid rent late, the owner could terminate the lease by sending the tenant a violation notice, followed by a termination notice if the tenant failed to cure the violation. The owner's property manager sent the violation notice to the tenant. After the tenant failed to cure the violation, the owner sent the termination notice. The tenant refused to move out of the space. When the owner asked a court to evict the tenant, the tenant argued that the owner hadn't complied with the lease.

A New York court threw out the owner's eviction case. It said that the owner's termination notice was invalid because the owner hadn't properly followed the lease's notice requirements. The lease didn't authorize the property manager to send notices on the owner's behalf. “The language of the lease does not say ‘Lessor or its agents'; it simply says ‘Lessor,’” the court said. The lease authorized only the owner's attorney to send notices on the owner's behalf [Rockaway Crossings LLC v. DNB Party Time Corp.].

Tips to Avoid Notice Problems

To plug this loophole, say in the lease's notice clause that your “agents”—which includes your property manager and anyone else you've given a “power of attorney” to—can send notices on your behalf, advises Denver attorney Mark A. Senn. Don't name those agents in the lease, he cautions. You would then need to amend the lease each time the named agent changed.

To include agents in your lease's notice clause, add the following language to the clause where it lists who may give notices on your behalf (or modify the language already in the clause): CLLI0053

Model Lease Language

Notices required hereunder may be given by Landlord or by Landlord's agent or attorney.

Practical Pointer: Check with your attorney about whether your state law, in notice situations, requires you to supply written proof that someone is your agent. For example, when sending a notice on your behalf to a tenant, your agent also may have to include a letter from you indicating that you've authorized the agent to send the notice, says Senn.

CLLI Source

Mark A. Senn, Esq.: Member, Senn Lewis & Visciano, PC, 1801 California St., Ste. 4300, Denver, CO 80202; (303) 298-1122; MSenn@SennLaw.com.