Most commercial real estate agreements contain a clause
detailing how the parties are to give notice to one another if a
notice needs to be sent under the agreement. Events triggering the
need to send a notice might include waiver of a condition,
extension of time periods, exercise of an option, or termination of
the agreement. Notice clauses can become an issue if one party
asserts that it was sent a notice that was not done properly or was
not received in time. This risk underlines the importance of clear
and unambiguous notice clauses.
The following are some technological and other
"glitches" that may affect whether a notice was sent
properly and received on time:
1. Notices sent by fax
recipient's machine is out of paper
recipient's machine is out of ink
fax machine not turned on
date/time recording is incorrect
2. Notices sent by e-mail
problem with server
recipient's e-mail address incorrect
e-mail blocked by junk mail program
e-mail stuck in "cyberspace" due to length of
recipient does not read notice because it was from an unknown
sender (e.g. the sender's assistant sent the e-mail and his or
her name appeared as the sender)
date/time recording is incorrect
"out of the office reply" arrives from the recipient,
raising uncertainty over whether the notice is considered to have
been received (e.g. do you need to try another form of
recipient declines to have a "read-receipt" sent back
In terms of the wording of notice clauses, the parties should
consider the following types of issues:
Notices received after 5:00 p.m. on a business day—are
they deemed to be received that day or the next business day?
Notices received on non-business days—are they deemed to
be received on the next business day?
Notices sent to a particular person's attention when sent to
a business—what if the agreement is intended to be in force
for a long period of time (e.g. 10–20 years) and the
addressee no longer works at the business? Is it better to write
"Attention: President [or some other officer]"?
Notice clauses cc'ing solicitors for the
parties—should a recipient's lawyer also receive a copy
of the notice?
Notice clauses are critical in real estate agreements. Parties
to the agreement need to be sure that the notice clause clearly
sets out how they expect notices to be sent and received.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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