What is the correct way to calculate a month's written notice

by Marlon Shevelew, Marlon Shevelew & Associates Inc


What is the correct way to calculate a 'month's written notice,' as required, for example, by section 5(5) of the Rental Housing Act, to be given by a party wishing to cancel a periodic (month-to-month) lease.


To fully understand the importance and effect of the words 'month's written notice,' the first point of reference is the Interpretation Act, which provides that the word 'month' in any statute – unless otherwise defined in the specific statute itself – shall mean a calendar month.

Therefore, if one intends on cancelling a periodic lease in accordance with section 5(5) of the Rental Housing Act, it is incumbent on the cancelling party to first give the other party a full calendar month's written notice of their intention to do so, which runs from the end of the month in which the notice is received, and expires on the last day of the following month.

I emphasise the word 'received' to draw attention to the importance of parties first considering the precise wording of their lease before issuing such a notice; in particular, leases ordinarily include provision for calculating when such written notices – sent in any one of the agreed modes of transmission, such as registered post, email or hand-delivery – are deemed to have been received by the other party.

These clauses usually have the heading 'Domicilium Citandi et Executandi', or simply 'Notices', and the clause itself ought to include a sub-clause similar in wording to the following:

Any notice, demand or other communication properly addressed by either party to the other party at the latter's chosen domicilium address and delivered:
(a) by prepaid registered post, shall be deemed to have been received by the recipient on the 5th business day following the date of delivery;
(b) by email or hand, shall be deemed to have been received by the recipient on the date of transmission or delivery.

The relevance of the distinction between the various modes of delivery is best illustrated by example:

During December, a Landlord (whose lease contains the above clause) decides to give notice to her Tenant to terminate the parties' month-to-month lease at the end of January.

Intending to comply with the requirement of giving at least a calendar month's written notice, she delivers her termination letter to the tenant by registered post on 28 December.

In this instance, unless the Tenant acknowledges receipt of the registered letter in writing, or any other recordable form, prior to the end of December, then, applying sub-clause (a) above, the Landlord's cancellation notice will only be deemed to have been received by the Tenant on 4 January, which, in effect, delays the expiry of the requisite notice period to the end of February.

It is therefore imperative that Landlords and Tenants exercise caution by ensuring that they first check whether there is provision in their lease for calculating the 'deemed receipt' of notices, as a mere one or two-day error might result in the notice period running for a full extra month, which could have a variety of challenging consequences.

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