Skip to Main Content

Publications

How Contractual and Statutory Notices Dovetail in the Commercial Lease Context


There is no question that one of the most important provisions in a commercial lease is the notice provision or clause. Failure by the landlord to comply with this provision could nullify a breach or default by a tenant. I will refer to this provision in this article as “contractual notice” because it is what the landlord and tenant agreed upon when the lease was executed. The “contractual notice” is separate and distinct from the term referred to as “statutory notice.” The latter is not necessarily spelled out in the lease and is not subject to negotiations by the landlord and tenant. Furthermore, except in a very limited situation, the requirements of the statutory notice cannot be waived by the tenant.

In Connecticut, summary process — or the process by which a tenant is evicted from the leased premises — is a “creature of statute.” What that means is that the relationship between the landlord and the tenant in that context is strictly governed and determined by statute. The landlord simply cannot initiate certain actions against the tenant unless those actions are mandated by statute. For example, no matter how many months a tenant is in arrears, the landlord cannot take matters into its hands by resorting to self-help means such as “locking out” the tenant. In this situation, the landlord cannot place itself in a position to evict the tenant and regain legal possession of the space unless it complies with the requirements of the statutory Notice to Quit. The specific manner by which the Notice to Quit is served is also governed by statute, so any technical noncompliance in that regard will render the notice itself defective.

The contractual notice and the statutory notice dovetail in the commercial lease context. Although it is the law in Connecticut that a landlord cannot commence eviction proceedings without first complying with a contractual notice provision in a commercial lease, that does not necessarily mean that the contractual notice provision trumps the statutory notice requirements. Rather, it is simply a recognition by Connecticut courts to uphold the sanctity of a contract by affording deference to what the parties to the lease agreed in advance regarding how each should first be notified of a breach or noncompliance before any legal remedies are pursued. Once this contractual condition precedent has been satisfied, the statutory notice is then triggered. Many tenants (and even landlords) confuse the statutory and contractual notices. For example, in order to comply with the service of a statutory Notice to Quit for commercial leases, the notice must be served at the commercial premises; it should not be mailed to the tenant’s corporate offices, or sent via certified mail to the tenant’s Lease Administration Office, or faxed, or emailed. Yet, many tenants wrongly assume that by including a provision in the lease stating that “no notices to be served on the store premise,” this will somehow inoculate the tenant from the embarrassing situation of having a process server appear at the premises during business hours with a Notice to Quit in hand. Conversely, noncompliance with the proper method of service by the landlord in an attempt to placate the tenant could expose the landlord to a potential dismissal of a summary process action.

Could this statutory notice be waived by a tenant under Connecticut law? Yes, but only in a very limited situation: lapse of time. Under a specific statute, a tenant could agree that the landlord does not have to serve it with a Notice to Quit when the landlord is attempting to regain possession of the premises after the lease has expired. This is the one and only time that a tenant could waive the service of a statutory notice to quit under Connecticut law, and that is the only time that eviction proceedings could commence without the service of a notice to quit. In any other situations, regardless of the severity of the tenant’s breach, the statutory notice must be served on the tenant before any eviction process commences.

The important points to remember about the two notices are the following: A contractual notice provision in a commercial lease will be fully enforced by courts in Connecticut. It represents the condition precedent to any action that the landlord intends to pursue against the tenant. This lease provision must be read closely and strictly followed. For example, one such provision could read as follows: “If the tenant fails to pay rent on the due date, then the landlord will institute legal proceedings against the tenant five (5) days after serving the tenant with notice of such default” (for non-monetary defaults, the notice period is generally more liberal – 20 to 30 days). In this scenario, the statutory Notice to Quit cannot be served on the tenant until after the five days has expired. This is even more important in instances where the landlord is forced to commence an eviction action against the tenant to regain possession of the premises. Again, the contractual notice requirements could be whatever the parties agreed to at the time the lease was executed, and unlike the statutory notice, is negotiable. Further, even if the requirements of the statutory notice were satisfied in all respects, the landlord may still not prevail in an eviction proceeding if it failed to comply with the requirements of the contractual notice.