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Harvey Haber’s Leasing Tips May 2012

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Proper Notice

Make sure that a tenant gives notice exactly as prescribed under the lease.

Improper notice can invalidate whatever notice the tenant is giving.

Late Notice

The lease calls for written notice to be delivered to the landlord, and it is deemed to be delivered on the date of delivery.

The tenant, exercising its right to renew the term, sends its renewal notice by regular mail, and it is received by the landlord two days after the date it was supposed to have been delivered.

Has the tenant lost its right to renew because of the late date of delivery?

Yes.

Except in the event of extremely mitigating circumstances.

Canadian courts have taken a position that delivery of a renewal notice when it is supposed to have been delivered is a “condition precedent” and they will construe it strictly.

American courts appear to be more lenient in such event, particularly if there is no prejudice to the landlord.

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