Leases and different actual property paperwork sometimes embrace a brief paragraph saying that if both social gathering desires to provide a proper discover of something (resembling a default or the train of an choice), that discover should be given in a sure manner – sometimes by hand, by licensed mail, or by FedEx or related service. And it should be despatched to sure addresses. A discover that doesn’t comply won’t be legitimate.
In 2021, most peculiar enterprise communications happen by electronic mail. Is it time for contracts and leases to permit formal notices by electronic mail? If you happen to ask a lawyer who spends time in court docket litigating over disputes, the reply will typically be no. A litigator will fear that electronic mail notices create too many points about whether or not they had been truly despatched or truly obtained.
It’s nonetheless true that almost all communications happen by electronic mail. That’s how most individuals count on to speak in 2021. And if a selected discover should be given, if in any respect, by a sure date, then electronic mail could be the perfect approach to give that discover. It avoids a frantic scramble to ship a FedEx package deal or hand supply a day or two earlier than the discover deadline.
Contracts ought to permit formal notices below authorized paperwork to be given by electronic mail. And many individuals in actual property and their attorneys try to determine how to do this, particularly for notices that may must be given simply earlier than a deadline.
As one easy resolution, some contracts say an electronic mail discover will turn into efficient as quickly because it’s despatched, offered that the sender dispatches a paper copy of the e-mail by in a single day supply throughout the subsequent enterprise day or so, even when it’s despatched or obtained after the precise discover deadline. That association might create a bit little bit of uncertainty for some time on the receiving finish, however not a lot, and it appears tolerable.
Some contracts say notices by electronic mail should be given from a specified electronic mail handle and should include some magic language within the topic line, to attempt to guarantee that the recipient sees the message and realizes its significance.
Different contracts require that electronic mail notices go to a number of specified addresses with a request that the recipients acknowledge receipt. The discover turns into efficient solely when a sure variety of recipients acknowledge receipt. If that doesn’t occur rapidly, then the discover sender can decide up the phone to attempt to make it occur, or can ship the discover by another means. This course of helps guarantee an electronic mail discover will truly be obtained and brought critically, nevertheless it doesn’t clear up any issues when an electronic mail discover should be given earlier than a sure deadline.
Since any contractual relationship is prone to spawn an enormous quantity of electronic mail communications, the events would possibly fear that a kind of emails could be deemed (or not deemed) a proper discover when it was supposed to not be (or to be) a proper discover. As one approach to guarantee that electronic mail notices are acknowledged as such and brought critically, maybe the contract ought to require that formal notices given by electronic mail should include an electronic mail attachment with the precise discover itself, together with a signature. Every other electronic mail communications are simply chitchat.
Measures like these ought to assist make electronic mail notices sensible, dependable, and protected. They might additionally assist deliver actual property paperwork into the twenty first Century.
If these measures usually are not sufficient, maybe there’s a enterprise alternative for somebody to create a 3rd social gathering service to obtain copies of electronic mail notices after which verify that the notices had been truly despatched and obtained. If any uncertainty existed about receipt of an electronic mail, that service might take specified additional measures to ensure the recipient truly obtained the e-mail discover, resembling choosing up the phone and telling the recipient to learn the incoming discover, then ensuring the recipient truly did that. The usage of such a trusted third-party service must eradicate problems with proof and any considerations in any respect in regards to the knowledge and practicality of giving notices by electronic mail.
A technique or one other, it’s in all probability about time for actual property contracts to meet up with trendy communications strategies.