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Be Timely or Be at Risk
Parties to commercial leases often have opportunities to exercise rights that they have bargained for in the lease negotiation process. Those rights may be held by both the landlord or the tenant and may relate to the termination of the lease, the renewal or extension of the lease term, the right to expand or contract the premises, the right to reduce rent, the right to relocate the tenant to other premises or whatever the needs and creativity of the parties may have caused them to negotiate. Typically, these rights are important to the operation of the business of the landlord or the tenant, and the lease document requires that a right be exercised by giving notice in a certain manner and by a certain date. If the notice is not timely and properly given, the right may be lost.
Often the lease itself expressly states that if the notice is not given within the specified time, the right will cease and terminate, or the party benefited by the right will have waived it. Alternatively, the lease may state that time is of the essence for the performance by the parties. Even if the lease is silent, case law from many jurisdictions requires timely performance, or the exercise of the right will not be effective.
Not only is it important that the notice be given within the prescribed time limit, the notice must be properly given, ie, adhere to all the requirements in the lease's notice provision, if it is to comply and be effective. A notice that is not properly given is not effective at all. To comply with the lease and be effective, the notice must be sent to the parties at the addresses set forth in the lease. Those addresses may have changed over the course of time, and it is hoped that the parties have complied with the lease requirements relating to notice of the changed address. If the lease provides that the notice must be given in person, by certified mail or by express courier, such as FedEx, the parties are well advised to follow the strict requirements of the lease. The strategy should be not to give any argument to the other side that the notice was not given in a proper and timely manner.
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