In the first two articles of this series,
we discussed the analysis
necessary to determine whether a material breach of the lease has occurred.
Once a determination has been made that such a breach has occurred, the
landlord’s attention must turn to ensuring that the breach is properly
declared by providing adequate notice of the default. In the commercial
setting, the lease will be controlling factor on this procedure.
Because Arizona statutes do not have a set procedure (or requirement) for
declaring a default of a commercial lease, it is extremely common for
commercial leases to contain such provisions. These provisions need to be
reviewed carefully, as a failure to follow the procedural requisites may
render a default improperly noticed and, thus, a breach improperly declared.
There are exceptions to this rule; specifically, notice that does not follow
the strict provisions of the lease will be deemed sufficient if:
the notice provided is superior to that required by the lease;
the notice is sent to a known agent of the defaulting party under the lease;
the course of conduct between the parties has established a different method
of providing notice.
It is in the landlord’s best interest to err on the side of over-noticing
the default. Thus, a landlord is well advised to provide notice of default
(1) in the manner provided for in the lease, (2) to any other known address
of the tenant, and (3) to any agent known by the landlord to represent the
See Richardson v. Casey, 6 Ariz. App.
141, 430 P.2d 720 (1967) (holding that notice must be provided in
accordance with the terms of the lease, if the lease requires such
See University Realty & Development Company
v. Omid-GAF, Inc., 19 Ariz. App. 488, 508 P.2d 747 (1973).
Bates v. Springer, 109 Ariz. 203, 507
P.2d 668 (1973) (notice to the agent will be imputed to the tenant).