The lease provision which stipulates how notices and formal communications should be given by each party to the other – the Notices clause – can often be regarded as 'boilerplate' in negotiations. It should not be. The clause will regulate the operation of critical lease events such as the exercise of a break option or the proposed assignment of the lease and it is essential therefore the relevant wording in the lease is drafted in clear terms so as to provide certainty to the parties and their solicitors at a later date as to how the notice should be given.
Key considerations in this respect will be:-
(a) the agreed place of service for each party (especially relevant for overseas companies) e.g. the registered office, the party's address stated in the lease or the address of the party's solicitors;
(b) any specific mode of service e.g. delivery by hand or special/recorded delivery;
(c) whether the specified method of giving the notice is mandatory, thus requiring strict compliance by the server of the notice or merely permissive and therefore not excluding other modes of service;
(d) whether service by e-mail is permitted; and
(e) whether the notice is deemed received by the recipient if it has been sent by the specified method.
Whatever the final combination of these variables, the parties should make sure they will be fit for purpose for the duration of the lease : they could become very important in the years to come!