What is a Notice to Remedy a Breach in Commercial Lease?

In Short

• A Notice to Remedy a Breach is a written notification from the landlord to the tenant, outlining a breach of the lease and providing a timeframe to rectify the issue.
• The lease agreement usually specifies when the notice should be served and state laws may override these terms.
• Tenants should carefully review their lease to understand their obligations and the timeframe for remedying breaches.

Tips for Businesses
If you receive a Notice to Remedy a Breach, act quickly. Check your lease for details regarding the breach, the timeframe allowed to rectify it and any necessary steps. Keep records of your communications and actions to avoid future disputes. Consulting a lawyer can help ensure compliance with your lease terms.

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Table of Contents

• What is a Breach?
• What is a Notice to Remedy a Breach?
• When is a Notice to Remedy a Breach Required?
• Can the Tenant Issue a Notice to Remedy a Breach?
• What Should a Commercial Tenant be Looking Out For?
• Key Takeaways
• Frequently Asked Questions 

It is essential to be aware of the terms outlined in your commercial lease, particularly to ensure compliance with your obligations under the lease. Your commercial lease will typically include clauses that outline the timeframe for sending a notice to remedy a breach. This article explains what a notice to remedy a breach is and when a landlord is required to send one. It also explains what the tenant should look for in their commercial lease to determine how they should respond to a notice.  

What is a Breach?

A breach occurs when one party fails to comply with a specific obligation outlined in a lease. While the terms ‘breach’ and ‘default’ may be interchangeable, some commercial leases define ‘default’ specifically. For example, failing to pay rent by the due date constitutes a default. However, the lease may say this onlya breach if rent is not paid within 14 days of the due date. Therefore, it is essential for a tenant to read the lease.

What is a Notice to Remedy a Breach?

Notice to remedy a breach is usually a written notice from the landlord to the tenant, setting out the:

1. facts surrounding the breach of the lease, such as late payment of rent;
2. details of how the tenant can remedy the breach;
3. timeframe at which the tenant should remedy the breach; and
4. consequences of failing to remedy a breach.

Moreover, tenants should be aware of any additional obligations or conditions that may apply when remedying a breach, as outlined in the lease agreement. These could include:

• requirements for notifying the landlord once the breach has been rectified; or
• providing evidence of compliance with the lease terms. 

By understanding these supplementary provisions, tenants can ensure they fully comply with the lease terms and mitigate any further disputes or misunderstandings with the landlord. Additionally, tenants should maintain clear records of all communications and actions taken to remedy breaches, as these may be crucial in resolving disputes or defending against future legal claims. Taking proactive steps to address breaches and maintain open communication with the landlord can ultimately help to preserve the integrity of the lease agreement and foster a positive working relationship between both parties.

When is a Notice to Remedy a Breach Required?

The lease will typically include a provision requiring the landlord to provide notice to remedy a breach if they believe the tenant is in violation of the terms outlined in the lease agreement. However, it is crucial to note that state-based statutory obligations, as outlined in the table below, ultimately determine the notice periods and requirements that typically apply to tenant breaches only, which may override the terms specified in the lease.

Can the Tenant Issue a Notice to Remedy a Breach?

The majority of commercial leases do not provide a provision for tenants to issue a notice to the landlord to remedy a breach. However, if the tenant believes the landlord has breached the lease, nothing prevents them from issuing a similar notice to the landlord to remedy a breach. If a commercial lease includes a clause that defines the format of a notice to remedy or if there are legislative format requirements, the tenant must follow this format.

Speak to a leasing lawyer in these events to understand your obligations for serving a valid notice to remedy a breach against a landlord.

What Should a Commercial Tenant be Looking Out For?

To find out how their commercial lease treats breaches, a tenant should review the lease and consider the:

1. obligations in the lease;
2. timeframe to remedy a breach before the landlord serves a notice to remedy;
3. the minimum period they have to remedy a breach after receiving a notice; and
4. timeframe to remedy a breach before the landlord can exercise certain rights, such as eviction.

In a commercial lease, no legislation imposes a minimum standard for the contents of the lease. However, the legislation usually requires a reasonable period. This makes it even more important to thoroughly review the lease to determine your rights and obligations.

Key Takeaways

A landlord will send a notice to remedy a breach when the tenant fails to fulfil an obligation in their commercial lease. In most cases, the lease will specify when the landlord can send a notice to remedy, so the tenant should be aware of these terms. The breach notice allows the tenant to remedy the breach before the landlord takes more serious action, such as repossessing the premises and terminating the lease.

If you believe you have breached your lease, our experienced property and leasing lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers who can answer your questions and draft and review your documents. Call us today at 1300 544 755 or visit our membership page. 

Frequently Asked Questions