Daily Development for October 3, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

LANDLORD/TENANT; NOTICE: Where tenant has right to claim abatement of rent upon “immediate” notice to landlord of injury to premises affecting tenant’s occupancy, tenant’s obligation to provide notice is not governed by general provision requiring that all notices from tenant by landlord be by certified or registered mail.

Ring v. Arts International, Inc., 7 Misc. 3d 869, 792 N.Y.S. 2d 296 (N.Y. Civ. Ct. 2004)

Tenant claimed that it was entitled to abate rent when the sprinkler system in its premises malfunctioned, dousing the area.  The lease stated that if the premises were damaged by “fire or other casualty” tenant was to give landlord “immediate” notice.  Then, the same provision in the lease stated that if the premises were rendered wholly unusable, then rent completely abated until Landlord effected a repair of the condition.  When the sprinkler damage occurred, Tenant sent to Landlord a letter by regular mail stating that the premises had been rendered untenantable and that it was withholding rent.

Landlord disputed that the premises were rendered untenantable.  When Tenant failed to pay rent, Landlord sued for possession, and Tenant defended on the grounds of the abatement right set forth in the lease.

One of the issues in the case was whether Tenant had properly invoked the right by mailing notice to the Landlord.  Another part of the lease stated that “Except as otherwise in this lease provided. . . Any notice by Tenant to Owner must be by registered or certified mail . . . .”  It was conceded that Tenant had not sent the notice by registered or certified mail.

The court first noted that the Landlord admitted that it had received the letter. It stated that the law was clear that where Landlord responds to a notice, demonstrating that it has received the notice, its failure to object promptly to the form of notice is a waiever of its right to assert tha tthe notice was invalid.

But the court’s second holding on the point is important to note.  It held that the lease paragraph providing for casualty, by providing for “immediate notice” demonstrated that the parties did not intend that the “certified or registered” mail requirement apply.  The court noted that the notice provision stated expressly that it these requirements applied “except as otherwise in this lease provided,” and in this case the lease did provide otherwise.

Comment 1: The editor views that court’s analysis of the notice requirement as not logical, although he cannot quarrel with the outcome as applied to these facts.  Why should the requirement for “immediate notice” preclude use of registered or certified mail? Registered or certified mail might provide greater certainty of notice.  Isn’t the landlord entitled to that?  What if the tenant’s mailed notice had not reached the landlord at all.  Was it nevertheless valid when mailed “immediately?” 

Comment 2: Obviously there’s a drafting lesson here that might have more teeth in it in other circumstances.  You can’t rely upon a general statement of notice requirements if arguably there is detail about the form of notice elsewhere in the lease.  Either refer over or cover all notices of any kind in a single provision. 

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