QUESTION:
Hi Ken,
While on the subject of contracts -- while having used your contracts for years and years, one item in the notification and/or renewal process, has always kind of stumped me. For instance, the NY law states that I must notify my client of renewal, via Certified letter, (not return receipt) that the contract is going to be renewed. In spite of the fact that you say that many alarm companies fall short in this area, I've done this faithfully through the years, in spite of the cost. (By the way, I do not care for the latest month to month renewal that you have now, to avoid having to send a Certified letter) Anyway, what my question is:
..... What should I do when I send either a Certified, or a Certified Return Receipt letter (for any reason) and it is never picked up by the client and is returned to me unclaimed? What is the next step? What I've have been doing is, putting the sealed returned letter in their file (as proof that it was sent and refused) and sending them another letter via regular post, but with a mailing receipt for that letter from the Post office and filing that in the clients folder too. Would you say that that would be sufficient to prove that I had made the best effort to notify them of ------ whatever? ( i.e., would it apply to all of these?----- cancellation of contract, change of status or information, renewal of contract, or whatever other legal snags I might run into?)
As always, thank you for your help and interest.
Gene
Reliable Alarm
Long Island NY.
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ANSWER:
There can be several reasons that you may be called upon to serve some form of notice to your subscriber. That obligation may arise by reason of statute, contract or reasonable course of conduct. Before examining each scenario let me preface the remarks with this caveat: You must comply with notice requirements imposed by statute or contract. Be careful to send the notice exactly as specified. That can be by ordinary mail, overnight -- by specific carrier, fax, email, certified, certified return receipt, registered mail. These methods of service are not interchangeable and you should not take it upon yourself to alter the method required. Unless a statute or contract prohibits notice by a specific manner, in addition to complying with the required method of notice you can safely send the notice by another method as well. Be certain however to document that you sent it in the required method so later you are not accused of using only the alternate method.
Automatic renewal provisions trigger statutory notice requirements in some states. I have posted state laws requiring notice for renewal on my web site at http://www.kirschenbaumesq.com/autorenewal.htm.
When a statute requires notice in a particular manner you must comply strictly to avoid the consequences of failing to give notice. Unless the statute requires actual receipt of the notice your obligation is satisfied when you properly send the notice. If for example you send certified mail, return receipt requested, and the post office delivers it unclaimed, all you need do is save that envelop, after making sure you have properly addressed it and otherwise did whatever you are required to do to send it.
When the notice obligation is mandated by the contract then you should also strictly comply. Your contract should avoid language such as "such notice as will likely be received by recipient." That is too ambiguous and if notice is not received then you are open to challenge on your method of service. It's better to have specific methods of service. I rarely agree on certified mail, especially return receipt. Too often certified mail is not accepted, not signed for or the receipt never makes it back to the sender. Better, faster and more economical to specify email or fax, and in either case you easily have proof of service. If you contract provides for regular mail, as my contracts usually do, all you need do is make a contemporaneous note that you have served the notice. Of course an affidavit of service would be even better, which is used by law firms to prove service, but even your initialed note should be sufficient.
There are times when you may need to give notice and there is no statute or contract requirement. Termination of services, monitoring in particular, is one such time you may want to provide notice. If the contract has not specific requirement of notice then you are free to improvise. If you have given such notice before or routinely give notice to other subscribers in a particular manner then you may have established a course of conduct that you should continue to follow. If you have no established manner of service or notice, then common sense should be your guide.