In part 1 we advised how to establish the timelines (critical path) to your lease option event, noting that time is of the essence.
So, having established the “When” now, we will discuss the “How” to actually exercise the lease option.
Before we talk about the Notice itself we need to establish “who” the Notice needs to be received by and the method of communicating same.
You need to refer to your lease for a clause(s) called “Notices” or “Service”. This clause will advise who the notice is to be sent to as well as the method of communication.
For example: “Notices to the Landlord must be delivered to the registered office of the recipient,” and “Notices to the Landlord must be sent via registered mail.”
The detail of these clauses must be taken seriously as there are numerous examples where Retailers have relied upon their own assumptions and hand-delivered an envelope to the property managers office only to discover in the weeks to come they have been given the notice to vacate. (I will set out an actual case in the coming issues).
However, it is easy to doubt the process set out in the lease when landlord registered offices can change, or appear unclear and that society now relies upon and accepts electronic forms of communications.
So, here are my steps that remove all confusion to ensure you have served your option notice effectively.
Each month you receive a rent invoice, prior to the option period (see part 1). Write to the landlord/managing agent/landlord representative asking the following: “with regard to the above-mentioned lease are you Authorised to receive Notices on behalf of the Landlord entity? And if not, please provide the full contact details for service of Notices to the Landlord. “
Now we have established the “who.” Next is the method.
This is possibly the most vital part of the process and should never be ignored.
There are two parts in communicating a lease Notice, first is the service from Lessee to Lessor, the Second is the “GOLD,” the confirmation of receipt of the Notice.
Therefore, I cannot recommend more strongly the following:
- Regardless of what the lease sets out as a method, always send your Notice via Registered Mail which requires a signature.
- Further send copies via email, fax etc. to other parties you believe represent the Landlord, asking these parties to acknowledge receipt as well.
Sounds like overkill I hear you say? Well, that may be the case, however, remember an option is your right over someone else’s land.
Never assume all is well, I have seen too many businesses destroyed by not following these steps.
The receipt of service of your Notice is “GOLD”- don’t lose the lot for less than $10.00!