Delivery is Required for a Valid Lease and Contract
I was recently representing a landlord in a one year residential lease. The tenant signed the lease and sent it back to the landlord. The landlord signed the lease but before he could send the signed lease back to the tenant, the tenant’s attorney cancelled the lease. The attorney stated that the lease was not valid because it had not been “delivered” to the tenant. Is this correct?
Yes, it is most likely the case that the lease was not effective and binding until it was delivered to the tenant. In New York State, delivery is a requirement of a valid lease. In a well cited New York case, 219 Broadway Corp. v. Alexander’s, Inc., 46 N.Y.2d 506 (N.Y. 1979), the court held that “A lease … requires the fulfillment by the parties of certain prerequisites to take effect. It is the well-established rule in this State that delivery is one such requirement, the absence of which, without more, renders the lease ineffective.” The requirement also applies to other conveyances of land, such as contracts for the purchase and sale of real estate.
Important Tip: The definition of “delivery” will vary from contract to contract (and lease to lease; a lease is a form of contract). Many real estate contracts will spell out acceptable delivery methods within the contract itself. For example, it is becoming much more common for leases to contain provisions allowing electronic delivery in addition to traditional hand delivery. In certain instances, a court may also imply delivery based on the conduct of the parties.
|Neil B. Garfinkel,
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP