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Just the Fax Will Do
by Ron Davis

The fax machine recently gained credibility as a legitimate means of communication in shopping center lease disputes.

The credibility was gained, however, at the expense of the owners of an Oklahoma shopping center. Because the courts recognized the fax machine as a way to inform the owners of a tenant's plan to renew his lease, the owners can't evict the tenant as they had hoped.

Details in the case show that the tenant, who operated a paint store, had leased space at the shopping center since 1977 under a long-term lease. That lease gave the tenant the right to renew the lease under the following terms:

"Notices [to renew the lease] shall be given in writing and may be delivered either personally or by depositing the same in United States mail, first-class postage prepaid, registered or certified mail, return receipt requested."

On the day of the deadline to renew, the tenant sent a fax message to the shopping center owners, stating his intention to continue his tenancy. Also on that deadline day, he sent the same message by Federal Express, though that message arrived late at the offices of the shopping center owners.

The shopping center owners denied ever receiving the fax message and began proceedings to evict the tenant. The tenant refused to vacate the premises, however, and the shopping center owners sued him to force his eviction. The Oklahoma Supreme Court, in ruling in favor of the tenant, explained, "Although the shopping center owners denied that they ever received the fax at issue in this case, the fax activity report and telephone company records confirm that the fax was transmitted successfully and that it was sent to the correct facsimile number on the day of the deadline to extend the lease. The fax provided immediate written communication similar to personal delivery and, like a telegram, would be timely if it were properly transmitted before the expiration of the deadline to renew. The tenant's use of the fax served the same function and the same purpose as the two methods suggested by the lease, and it was transmitted before the expiration of the deadline to renew. Under these facts, we hold that the faxed or facsimile delivery of the written notice to renew the lease was sufficient to exercise timely the renewal option of the lease." (Osprey L.L.C. v. Kelly-Moore Paint Co., 984 P.2d 194 [Okla. 1999])

Decision: August 1999
Published: January 2000



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