Prior to the commencement of a nonpayment proceeding, a landlord is required by statute to make a "demand of the rent," which may be oral or in writing. [Real Property Actions and Proceedings Law section 711(2)] For some thirty years, the law has been pretty well settled that the request need not be "exact" or "precise" in its proffered calculation. Rather, the demand most "fairly" afford the tenant notice of the "approximate good faith sum" alleged by the landlord to be due for the time period in question.
A "notice to cure," on the other hand, is typically the predicate to a holdover proceeding. Most leases permit the landlord to prematurely end (or terminate) the tenancy when the occupant violates a "substantial" lease-related obligation. When this situation arises, a landlord is usually required to afford the tenant an opportunity to correct or "cure" the "default," so that a forfeiture may be avoided. This preliminary notice advises the tenant of the landlord's objections and minimally apprises of: 1) the nature of the violation; 2) the need to effect a correction or cure within a specified time period; and 3) the consequences of the tenant's delay or inaction.
It is rare that we see both types of notices examined by a court in the same case, but that is precisely what occurred in ShopRite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC. In that dispute, ShopRite challenged the sufficiency of several notices issued by its landlord. The City of Yonkers had issued a violation against the property due to certain structural damage to the center's exterior wall. Apparently, it was the tenant's obligation to fix this problem and the tenant failed or refused to do so. Thus, in the rent demand, the landlord sought to recoup the fees and charges it had incurred to address the violation, "on an interim basis." The notice to cure, on the other hand, sought to compel the tenant to address the violation.
ShopRite commenced an action in the Westchester County Supreme Court seeking to declare the various notices of "no force and effect." The landlord countered with a request for an order directing the tenant to repair the structural violation. The Supreme Court denied the tenant's request and granted the landlord's application for relief. On appeal, the Appellate Division, Second Department, affirmed.
The appellate court's dissection of the various elements of the notices is of particular interest. As to the rent demand, the court observed:
'A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period'...The [landlord's] rent demand itemized the demolition and scaffolding costs the [landlord] incurred in order to mitigate, on an interim basis, the defects which were the subject of the violation, and indicated the date they were billed. Further, the rent demand notified the [tenant] that it owed the [landlord] the total sum as "additional rent," as defined in the lease. The rent demand provided the [tenant] with a good faith approximation of the amount due and therefore was valid[.]As to the "notice to cure," the Appellate Division noted as follows:
'The purpose of a notice to cure is to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time'...The notice to cure advised the [tenant] of the lease provisions at issue and informed the [tenant] that if it failed to cure the subject violation within 30 days, the [landlord] intended to do so and bill the [tenant] for the costs to cure as 'additional rent' under the lease. Attached to the notice to cure was a copy of the violation notice issued by the City of Yonkers, which indicated that there was 'structure damage to the exterior wall around the shopping center.' Therefore, the notice to cure sufficiently apprised the [tenant] of its obligations under the lease, gave a sufficient description of the areas of the building which needed repairs, and specified the consequences if the violation was not cured within a set period of time...Although the [tenant] retained an architectural engineer to review the [landlord's] repair plans, it did not perform the repairs necessary to cure the violation, and did not make any payments to defray the cost of repair work.ShopRite's advertising once professed that it "does it right." In this particular instance, it looks like the supermarket chain "got it wrong."
To review of a copy of the Appellate Division's decision in ShopRite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC, please click on the following link: