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Should I Stay or Should I Go?
The standard commercial lease contains language providing that if a tenant defaults in the performance of an obligation for more than a certain period of time after a landlord gives the tenant written notice of such default, then there is an 'event of default' under the lease, and the landlord is entitled to certain remedies, including dispossession and termination of the lease. The purpose of a 'cure period' provision is to allow the tenant an opportunity to cure a default under the lease before further action can be taken unilaterally by the landlord.
However, what happens if the landlord attempts to terminate the lease before the tenant has cured the default and before the end of the cure period? Is this early notification invalid or does it become effective immediately upon the expiration of the cure period without cure?
Generally, courts treat a contractually provided cure period as mandatory, and any purported termination of a lease prior to the expiration of such cure period makes such termination ineffective. See, e.g., Sauer v. Xerox Corp., 17 F. Supp. 2d 193, 197 (W.D. N.Y. 1998). Similarly, courts also require landlords to follow the requirements for notice of default and termination strictly because the law disfavors forfeitures. See Josephson v. National Screen Service, 810 S.W. 2d 708, 709 (Mo. Ct. App. 1991) ('The courts, in their abhorrence of forfeitures, search for legal reasons not to enforce them, and hold parties seeking to enforce them to a scrupulous observance of all legal and contractual requirements.'); see also Davis v. Wickline, 135 S.E.2d 812, 814 (Va. 1964).
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