Commercial lease. “Punctilious compliance” with terms of lease requiring notice of breach is not required where the manner of notice actually given is at least as effective.

Panagiotidis v  Galanis, 2015 VT 134 [12/18/2015]

SKOGLUND, J. Defendant appeals from an order granting judgment to plaintiffs on their complaint for ejectment for nonpayment of rent under a nonresidential lease. We affirm.

Defendant argues plaintiffs were obligated to notify him of the breach by certified mail as stated in the lease, and that notice by personal service of the complaint was insufficient. We consider only the question of whether notice to defendant by personal service, rather than by certified mail, is sufficient to satisfy plaintiffs’ contractual obligation to provide notice and an opportunity to cure. We assume for the purposes of this case only, but do not decide, that the notice provided by the complaint can satisfy the contractual notice requirement.

When a lease expresses an agreement with regard to notice of termination, the time, mode and manner of such notice must conform to the agreement. Deschenes v. Congel, 149 Vt. 579, 583, 547 A.2d 1344, 1346 (1988); Archambault v. Casellini-Venable Corp., 115 Vt. 30, 32, 49 A.2d 557, 558 (1946).

In Vermont Small Business Development Corp. 2013 VT 7, ¶ 15, 193 Vt. 185, 67 A.3d 241 we said that “[t]here is no reason to require less ‘punctilious compliance’ with terms of a lease providing for notice in the nonresidential context.” 2013 VT 7, ¶ 15. This statement must be limited to the context in which it arose. The omissions in the notice provided in Vermont Small Business Development Corp. were substantive omissions, and not a dispute over the form in which notice was delivered. See id. ¶ 16 (landlord failed to specify occurrence giving rise to event of default, and failed to provide date on which agreement would be terminated).

We are faced with a different situation here. The lease did not require that written notices be provided exclusively by mail; it stated only that notices were effective when given in the manner specified in the lease. The purpose of the written-notice requirement -- to trigger the ten-day cure period -- was satisfied by personal service. In this nonresidential context, we hold that a form of notice that is at least as effective, and actually more certain, than that deemed acceptable in the lease is valid.