Did You Get My Letter?

Print

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: [Read more…]

Print

HUGE SALE: $20,000,000 Property For Only $300,000. Read All About It

Print

What does an owner-landlord do when a tenant has a $300,000 purchase option for a property worth more than 20 million dollars? That question could be the end of today’s posting if we treated that as a rhetorical question. Other bloggers might do that, but not the erstwhile Ruminator.

When the spread is over 20 million dollars, legal costs mean little. For students of the “expected value” approach, the breakeven point for a 1% chance of picking up those millions is $200,000. If you think there is a 5% chance, then spending a million dollars is fair value for such a lottery ticket. Hence, a case decided about a week ago by the United States Court of Appeals for the Ninth Circuit makes sense to us economically, but doesn’t help us with our abiding belief that a deal should be a deal. [Read more…]

Print

Notices + Ambiguity: You Can’t Have It Both Ways

Print

We’ve never seen it said this way, but it can’t be an original thought. [After all, there really are very, very few of them.] When it comes to an enforceable agreement (a “contract”), you can’t have it both ways. If you aren’t bound, they aren’t bound. It isn’t an enforceable contract. When it comes to “election” notices, the principle is the same. You can’t have it both ways.

Why did that thought come to us this week? Answer: because two weeks ago we promised to talk about equivocal notices. That led us to ambiguities. To refresh reader’s memories, here’s what we learned constitutes an ambiguity: “Open to more than one interpretation.” That’s not the same as vagueness: “Not clearly or explicitly stated or expressed.” To say this in a different way, when words are vague, they are unclear; when they are ambiguous, each of the two or more meanings will be clear, but it won’t be clear which one was intended. [Read more…]

Print

Better Late Than Never, But Maybe Still Not Good Enough: Late Option Exercise Notices

Print

Despite rumor and gossip to the contrary, most late notices to elect one right or another will not be honored by the courts. To put this another way, notices such as those to extend a lease’s term will most often be subject to the “time being of the essence” rule, even if those words don’t appear in the document. Yes, there are cases to the contrary. Yes, some jurisdictions are more forgiving than others, but don’t count on it.

A lot of us think that courts will give life to late notices under the “so what’s the big deal, the recipient (usually a landlord) wasn’t prejudiced” rule. We don’t know how to say this more clearly, “don’t count on it.” If you send an unequivocal election notice, within the agreed-upon time limits, to the right places, by the agreed-upon method, you don’t “even have to get into it.” Why lose sleep at night? [Read more…]

Print

Was The Certified Mail Notice Really Unclaimed?

Print

Here’s a “bonus” posting, but you’ll need to decide if “bonus” is the right description. This is somewhat autobiographical but, as they say, “write from your own life experience.” This week we received two notices that were sent to us by certified mail. That’s not unusual because we often receive notices by certified mail. After all, we are named in many documents as a secondary, but required, place to where notices must be sent. What was unusual was that the certified mail envelopes themselves were inside a larger envelope that was mailed to us, by ordinary mail, directly from the original sender of the notices. The original notices were mailed on March 9. We eventually received them on April 16. [Read more…]

Print

To Send or Receive, That Is The Question.

Print

This is about “giving” notices in a lease or mortgage or SNDA or whatever. First, many, many of these documents call for the “giving” of notices, but don’t define what it means to “give.” This is especially important when those same documents start some sort of clock running when notice is “given.” Of course, some documents are perfectly drafted, and if those are the only kind you ever see, just sign off and brew another cup of coffee. If, however, your experience is same as this writer’s, you might want to Ruminate with the rest of us. [Read more…]

Print