Terrorism, Technology and 'Notice'

When drafting and/or reviewing a lease, great emphasis is placed on the key, deal-specific business terms of the lease, leaving the standard, non-deal specific provisions to be placed on the last few pages of the lease without much review. However, in light of recent events, many of these previously innocuous, "boilerplate" provisions, which apply to all provisions of the lease, may have a greater effect on the lease than in the past.

An example of one such provision is the notice provision. A typical notice provision reads as follows:

Any notice, demand, consent, approval, request, statement, document or other communication required or permitted to be given to or served upon either party hereto pursuant to the Lease shall be in writing and shall be sent by a reputable overnight courier, or registered or certified mail, return receipt requested, postage prepaid, addressed to those addresses set forth in the Lease Summary; provided, however, that Tenant may give Landlord telegraphic or facsimile notice of the exercise of an option hereunder or of the need for emergency repairs. All such communications mailed or delivered by overnight courier in accordance with the foregoing provisions shall be deemed to have been given or served as of the date of first attempted delivery as shown on the return receipt in the case of a mailing or the first business day after deposit with such courier for delivery on the next day in the case of overnight courier.

This provision provides two types of delivery for all notices - overnight delivery and U.S. mail - and two additional types of delivery for exercising an option and/or emergency repairs - telegraph and facsimile. Notice is deemed received on the first business day after deposit with the courier for overnight deliveries and on the first attempted delivery as shown on the return receipt for U.S. mail. This provision is sufficient in most instances. But what about those instances when it is not? The purpose of this article is to point out some of the deficiencies in a fairly specific notice provision and to suggest ways to deal with the problems that may arise.

Overnight Courier

The first acceptable means for notice delivery set forth in the example provision is overnight courier. Once the notice is deposited with the courier, the party delivering notice has no further obligations and the party to whom notice is to be delivered is deemed to have received the notice the following day. But what happens...