Did You Get My Letter?

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We’ve always wondered about an aspect of giving “notice,” but never having faced the particular issue, never went beyond “wondering.” Then, last week, we came across a Massachusetts Appellate Court’s decision touching on the issue. Ruminations can’t say that the outcome was very satisfying. So, we thought we’d toss it out for readers to think about. [That doesn’t mean we won’t share some of our observations, just that we don’t really have a conclusion (yet).]

Here’s the setup. A lease had a self-extension provision. Its term would roll over, a year at a time, unless either the landlord or tenant gave a “don’t do it again” notice. The particular provision read exactly as follows:

This Lease, including all covenants, terms, conditions contained herein, shall be automatically extended for additional successive Renewal Terms of one (1) year each unless Tenant or Landlord serves written notice, either party to the other, of either party’s option not to so extend the Lease. The time for service of such written notice shall not be more than twelve (12) months or less than six (6) months prior to the expiration of then-current lease period. Time is of the essence.

Now, we understand the purpose of giving at least six months’ prior notice. We generally object to any “earliest” time for the giving of service and neither ask for it on behalf of landlords nor accept it on behalf of tenants. Here, it appears that this was a “cut and paste” provision given that the extension periods were only 12 months long. Yes, we understand that notice could be given even before one extension term starts to tell the other party that the soon-to-begin extension term will be the “last,” but we don’t think the draftsperson was thinking that way. Oh, yes, we commend the parties for including that time would be of the essence.

Now, what did the lease’s “notice” provision say? Instant gratification – notices to either party:

shall be in writing and shall be sent by registered or certified mail or by a recognized overnight courier who maintains delivery records, postage prepaid. … All such notices shall be effective when received or, if delivery is refused, upon first refusal.

The critical “last” date to “serve” written notice was September 30, 2013. As we read the lease’s notice provision, to be an “effective” notice, its addressee would have to receive it by that date. That wasn’t an issue in the Massachusetts case, but it’s certainly something to keep in mind when negotiating a notice provision. The delivery date for mail is uncertain, and for “registered mail” even more so (given the postal service’s “handoff” process for registered mail). [Here’s how one website explains the registered mail process: “Registered mail is the Postal Service’s most secure form of mail delivery, involving an unbroken chain of custody. Registered mail is protected in sealed containers, safes and cages, and held under lock and key. This extra level of security can cause delays and may require up to 14 days for delivery.”]

We get “service notices” from FedEx. They tell us about delivery delays caused by storms, emergencies, fires, and the like. Sometimes, they tell us that deliveries may not be made “today” in a particular locale.

So, our first wondering is “what happens if I send a notice by an overnight courier, universally recognized for reliability, and it doesn’t (can’t) attempt delivery on the ‘next’ day, and that was the last day to ‘serve’ notice?” Will the “notice be effective anyway under some theory of “impossibility.” Will “equity” override an agreement that time would be of the essence? [If any reader knows the answer, please share it with the rest of us.]

That’s just some musing on the part of Ruminations because that wasn’t the issue facing the court.

Here, according to the tenant, it sent a notice of “non-extension” to its landlord about 2 weeks ahead of the deadline. It sent a package by Federal Express and that package was actually received by the landlord on the very next day, just as expected. According to the tenant, the package contained three documents: an estoppel letter; a subordination, non-disturbance, and attornment agreement; and “the” letter saying that the lease wasn’t going to be extended for an additional year.

According to the landlord, the package had only two of those documents and neither of them was the “we aren’t staying beyond this year” letter.

So, we have a “he said – she said” situation. The tenant’s witness swore that, no ifs, ands or buts, she included the critical notice letter and testified to details supporting her memory. Equally certain, the landlord’s witness testified that there was no such letter in the package.

Thus, the landlord and tenant were at a stand-off. They asked the court to make the call: another lease year or not? So, who had the burden to prove whether the notice was “served” or not?

The lower court ruled that the landlord had the burden to show that the notice was not received, [Surprisingly to us], the jury found that the landlord did not prove the notice letter was missing. The landlord appealed, arguing that the burden should have been on the tenant to prove that it had served the “notice.”

Cutting to the chase, the appellate court agreed that the burden fell on the tenant. It sent the case back to the lower court so that a (different) jury could hear the same case all over again. We’re puzzled why the outcome could be any different for any reason other than “strange things happen,” but that’s what the appellate court ruled.

Our question is whether the burden should really have been on the tenant. The appellate court correctly ruled that, “one relying on a condition to avoid a contractual obligation has the burden to prove the occurrence of the condition.” Normally, that means if you needed to do something before getting the desired result, you need to prove that you did that thing. The other “side” does not need to prove that you didn’t do it.

We’ve always thought the logic behind the rule was not that the party seeking a “benefit” always had the burden of proof, but where the issue was whether something “happened,” the party in the best position to “know” had the burden. Put simply, given that to be effective, this non-extension notice had to be “delivered” and not merely “sent,” how could the tenant prove that the landlord received it? Only the landlord could know. Yes, we know that if we look out the window and the sidewalk below is wet, pedestrians are wielding umbrellas, and passing vehicles are using their wipers, it is reasonable to conclude that it is raining. But, perhaps water is leaking over the roof of an adjacent building.

Yes, we think the appellate court got it wrong by citing the rule without citing exceptions to the rule, but that would get us into the distinction between the “burden of proof” and the “burden of persuasion.” That’s a law-wonky topic, and not for today (and maybe not for ever). In fact, we’re going to avoid that and most topics that will take us into epistemology.

With all of that as background, here’s what we’ve always wondered: What should a notice-giver do to make sure that notice recipient doesn’t say “the envelope was empty”? Proving that an envelope was sent on a particular date to a particular addressee seems pretty easy with the use of an overnight courier and even with the Postal Service. [The Postal Service has an image of every envelope, though we’re not sure what happens between the time the postal service employee touches the envelope and it gets into the automated delivery process.] What we’re asking about is the “empty” envelope because, even in these uncertain times, we don’t think the government is reading our mail. We don’t even read most of our mail.

Well, we think one good practice is to send the notice by itself and not together with other documents. That reduces the likelihood that the notice doesn’t make itself into the envelope or that it gets left in the envelope after more obvious (other) documents are removed. Perhaps two witnesses should observe the “sending” process. Maybe, a contemporaneous memorandum or certification of “sending” should be executed and filed. How about sending duplicate notices – two envelopes, by two different carriers? How about sending the notice ahead of time and then inquiring about receipt?

Overkill? We just don’t now. That’s why we wonder. The situation has never arisen in our “shop,” though we’ve thought about the possibility for years. Then, this case comes along. If you’d like to read the court’s opinion for yourself, go ahead and do so – click HERE to find it.




  1. Good article. These kinds of things are what make me wonder what happens with “good” property management or asset management.

    From the tenant side, they could have easily included a cover letter indicating they were delivering to the landlord the following three items … Item A, Item B and Item C.

    They also could have sent the landlord an email with the same cover letter information alerting the landlord to be expecting the items indicated. They could have also made a phone call to alert them of the termination notice being sent.

    The landlord in turn upon receipt of the items (less one of them) could have easily seen the above cover letter indicating three items were included and finding only two off them there. A quick call to the tenant would have alerted the tenant as to the missing item allowing plenty of time for the tenant to re-furnish the termination notice.

    Given the scenario you have indicated I do not fault the landlord for “missing” the termination notice as it would appear they were not expecting to receive such notice. They apparently were only expecting to receive the other two items.

    The tenant failed to ensure proper delivery of the notice, and I think your suggestion of separate mailing would have been one of the better selections for this tenant.

    For the want of a nail (in this case a registered letter postage stamp), the war was lost.

    Keep up the great work as I very much appreciate your comments about the issues you raise. Best wishes, James

  2. Hello, Ira.

    In my tenant/buyer rep practice I make it a practice to hand-deliver, mail and e-mail important and critical notices/documents to all parties that are local. For those addresses that are too far away I send documents via US Mail (return receipt requested) and also e-mail the document(s) to everyone that has an interest in the transaction (and some that have only a tangential interest), following up via e-mail to confirm receipt. In short, I request some type of written acknowledgement of receipt of the specific notice or document. Note: I never use the telephone to obtain confirmation of receipt.

  3. Jack Najarian says

    Thanks for the article. I think you always have to scan-in what you are going to send before it’s sent, but I think that is probably not the answer to your question. From the guidance of a senior partner in my early years, when sending certified mail, always sent regular mail, too. Some people refuse to pick up certified mail, and while there is a lot of cases that do not give people an out in that situation, there is still an argument. If you send it twice, by two methods, then it’s hard to say that person did not get it. Early in my career, I actually won arguing a case in front of an appraisal review board, where the tax appraisal district sent out a certified mail letter, but my client did not receive it because he was out on an extended leave for business, and ended up winning with one of my arguments being he did not receive the notice to re-apply for his exemption.

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