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Jul, 2014

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  1. #1
    Join Date
    Feb 2006
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    Default Service of notices under the lease

    A commercial tenancy specifies that all notices served under the lease must be sent registered/recorded post unless otherwise acknowledged by the recipient.

    Does a letter enclosing a rent statement showing arrears and notification of intention to instruct a surveyor to do schedule of dilaps count as a "notice"? No court action or mention of forfeiture proceedings are in the correspondence.
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  2. #2
    Join Date
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    Default

    Not quite sure what "unless otherwise acknowledged by the recipient" can mean. Perhaps we can see exactly what the relevant clause says.

  3. #3
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    Default

    Quote Originally Posted by Lawcruncher View Post
    Not quite sure what "unless otherwise acknowledged by the recipient" can mean. Perhaps we can see exactly what the relevant clause says.
    Thanks. Here is the relevant part

    "9.6 Notices
    9.6.1 Form and Service of Notices
    A notice under this lease must be in writing and unless the receiving party or his authorised agent achnowledges receipt is valid if and only if:
    9.6.1.1 it is given by hand sent registered post or recorded delivery or sent by fax provided a confirmatory copy is given by hand or sent by registered post the same day
    and
    9.6.1.2 it is served
    (a) [does not apply]
    (b) where the receiving party is the Tenant and not such a company at the Premises
    (c)[does not apply]

    9.6.2 Deemed delivery
    9.6.2.1. By registered post or recorded delivery
    A notice sent by registered post or recorded delivery is to be treated as served on the third working day after posting whenever, and whether or not, it is received
    ..."

    There is no definition of "acknowledge" in the lease.
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  4. #4
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    A notice under this lease must be in writing and unless the receiving party or his authorised agent achnowledges receipt is valid if and only if:

    The words in red are most unfortunate. If notice is served other than as specified the validity of the notice depends on the person receiving it acknowledging it. What has happened is that the draftsman has said to himself: "The law is that, unless the method of service is mandatory, a notice is served if it actually reaches the recipient and if the recipient acknowledges it he must have received it." He has then gone on, quite unnecessarily, to try and incorporate what is the position in any event and in the process confused the issue horribly.

    Anyway, none of the above is really relevant to your question. I think you have already half-guessed the answer. I think a "notice" has to be something formal which has some effect, such as the exercise of a right, setting some procedure in motion or the necessary first step in taking some action. I do not think that merely writing to the tenant to tell him that you intend to do something would count. An exception would be if the lease requires notice - and then the draftsman has rather tied your hands as to the method of service in respect of any notice required under the lease.

  5. #5
    Join Date
    Feb 2006
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    Thanks for your reply.

    The reason I was feeling cautious was that the tenant has never actually acknowledged any of my complaints that I have made known in writing (by writing back to me) and when I speak to him face to face, he doesn't say much in reply ! We have basically muddled along. It's been trying to get the most important bits sorted out as any response takes an age. It's only recently that I have noticed that clause so wondered if they have been playing a bit of a game with my requests over the years.
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