Understanding and Crafting a Sample Legal Notice
What Constitutes a Legal Notice?
A legal notice is a written document that conveys information or instruction to another person, made in accordance with the law and is deemed received by the party to whom it is addressed. The purpose of a legal notice may vary; however, its primary purpose is to inform the other party of a course of action, demand or intention, therefore giving them an opportunity to foresee or foresee consequences of not complying with the terms of the notice itself. A legal notice may be sent before filing a lawsuit, or as part of legal proceedings, depending on the nature of the dispute.
In the context of a lawsuit , a legal notice is often a mechanism by which the requirements of service of process may be satisfied. The failure to properly serve the defendant(s) may prevent the court from obtaining jurisdiction over the defendant(s), thereby denying the plaintiff his/her "day in court". As long as the defendant has sufficient minimum contacts with the state, the courts may obtain personal jurisdiction and service may be achieved by the delivery of a legal notice, pursuant to the rules of civil procedure, to accomplish notice in an expedient manner.
Essential Elements of a Legal Notice
In a legal notice, it is important to identify the parties you wish to serve them at the beginning. For instance, the caption should be relatively easy, but in some instances, you may have several different titles of people or companies that could be relevant. In the absence of a specific title for a parent company that would own a particular subsidiary, it may be relevant to name both the title of the parent company as well as the subsidiary company. It is also important to identify a specific address that is properly in the jurisdiction of the Court. In instances of out of state people or companies, this could take a little bit of additional research, calling registered agents, looking on Secretary of State websites and attempting to narrow it down to a specific address.
The body of the document should be succinct yet thorough. This could be one of the first documents the opposing party reviews so including every fact and piece of information up front could help the case proceed better than leaving them guessing at your intentions. The opening paragraph should briefly explain who you are, what kind of issues you are having and the steps that have previously been taken to resolve the issue. You also should explain what you believe you will be doing if they do not respond to the legal notice. If the document requires a response, you should also give legible contact information both for the responding party to review and respond.
Step-by-step Process for Creating a Legal Notice
When it comes to drafting a legal notice for your particular situation/demand, knowing what to say, how to say it, when to say it and whether or not it should be in writing, can become confusing. Therefore, to assist you with the drafting of a legal notice for a building code violation; breach of contract; demand for payment; evictions and/or terminating a tenant/sublease, we have prepared the following 5 step guide which clearly sets forth what an effective legal notice needs to include.
Step 1. Determine the format
First, you need to determine if your legal notice should be a letter or declaratory judgment. Generally speaking, a legal notice should be in the form of a letter but if your issue is so severe (i.e. clients is seeking a declaratory judgment or other equity or specific performance) a legal notice in the form of a letter is recommended.
Steps 2. Address it to the proper parties
Who is the legal notice going to? The check is in the mail? Then send your legal notice to who has the authority to pay. If you’re making a demand for removal of a building structure then make sure you send the legal notice to both the person that erected the structure as well as whoever owns the land it’s on. An eviction notice? It’s going to multiple tenants who are not cooperating, get addresses for all your tenants. Are you seeking specific performance of a contract for employment, land or goods and services? Send the legal notice to them, even tho they may not work there anymore or may no longer own the land. However, the who can be really case specific, so it is important to have an attorney review your situation prior to sending out the legal notice.
Step 3. Explain why the legal notice is being sent
Location, location, location, as they always say in real estate is very important for a legal notice too. So you explain why you’re sending the legal notice to the in the first place, by giving specific details about the violation (i.e. "The siding on the Attorney Building has mold on it in violation of the new Siding Code enacted last year…").
Step 4. Discuss the legal issue
Then specifically lay out the law and why the law is being violated or the damage that has resulted because of the violations of the law (i.e. "As you have failed to adhere to the requirements of the new Construction Code, your siding has grown mildew and is falling off in pieces at times, thereby causing danger to passing pedestrians and non-conforming structure under the new safety regulations…")
Step 5. Provide a time frame and remedies sought
And, lastly, a proper legal notice requires the time frame for compliance to be made as well as what the sender intends to do if the remedy sought within the time frame is not met (i.e. "Therefore, you are hereby given fourteen (14) days from the date you receive notice hereof to comply with the new Construction Code by replacing the siding, and to notify us in writing once the new siding has been installed.").
Frequently Encountered Pitfalls
Common mistakes can undermine the efficacy and legal validity of a legal notice. Here are some of the more common pitfalls to avoid:
- Mistake: Not including a return receipt Reacting to the fact that many notices are sent by registered or certified mail, many lawyers prepare legal notices without a return receipt requested. This is a mistake. A return receipt is vital proof that the recipient actually got the notice.
- Mistake: Failing to send the notice to every person or entity required to get it. A legal notice may be sent solely to one individual, or may involve a list of several individuals, including a business or corporate entity. Too often, one or two people at a faceless corporation find their names on a notice and do not share the information. The damage can be significant because a late response may void an otherwise acceptable legal notice.
- Mistake: Sending the legal notice via e-mail. E-mail can be hacked by unscrupulous individuals. An e-mail notice may never make it into the intended recipient’s inbox. However, a legal notice sent via U.S. mail is verifiable, provable, and can be provided as evidence in court. A legal notice may be properly sent by e-mail where a company, business, or individual has publicly announced that e-mail is an acceptable mode of communication.
- Mistake: Failing to use the correct address to send the legal notice. A legal notice must be mailed to specific individuals at a company or corporate entity. The notice must not be sent to a general delivery address or to a mail delivery (M.D.) address. A specific individual at a corporation must be sent the notice in order for the notice to be considered valid.
- Mistake: Not keeping proof of dissemination. A return receipt, postmarked letter, and/or a notarized statement of mailing entities is important. Retain proof of dissemination and be prepared to circulate that information if necessary.
Illustrative Sample Legal Notice
Assuming the defendant is a person, this is a sample legal notice of a claim against an estate:
Do not lose your rights. You have only 120 days from the date of this Notice to file any claims against the Estate of George Washington with the Probate Division of the Circuit Court of Montgomery County, Alabama.
The decedent’s representative is Caroline Washington (the "Personal Representative"). The Personal Representative has filed a petition for financial Wards for the Estate with the Probate Division of the Circuit Court of Montgomery County, Alabama with regard to claims of this type.
You must file with the court your claim in writing within 120 days of the date of this Notice, or your rights to present the claim will be barred. The claim must be made on the form Claim by Creditor Against a Decedent’s Estate (Form PC 555) . More information is provided on the form by the official Alabama Administrative Office of Courts.
Claims must be presented within four months of the date of publication of the above Notice to ensure their consideration:
1. To the undersigned Personal Representative at:
Caroline Washington, Personal Representative
123 George Washington Way
Montgomery, AL 36104
2. To the Clerk of the Circuit Court of Montgomery County, Alabama, Probate Division at: 251 S. Lawrence St. Montgomery, AL 36104.
The 120-day period ends for all lawsuits not pending at the time of the decedent’s death, at midnight, ____________23 December 20__.
Your Signature____________________________________
Your Printed Name_________________________________
If you have questions regarding the completion and significance of the Notice and the Claim, please contact your attorney.
Legal Notice Don’ts and Do’s
The do’s for drafting a legal notice include using the correct legal language, structuring the notice for clear communication, and sending the notice at the right time. The don’ts cover writing confusing language, closing the door on settlement offers, and misuse of the legal system.
Do’s
Language. Use only as much legalese as is absolutely necessary. Write the legal notice so that the reader will know exactly what the notice means and the consequences of his/her failure to act.
Communication. Draft the notice so that it will adequately communicate the terms to interested parties. For example, include the issue, the background and the desired remedy.
Timing. Allow enough time for response, and make your deadline reasonable.
Don’ts
Confusing Language. Don’t write like a lawyer, using long sentences that go on for pages. Lawyers love to use legal jargon that must be translated into plain English. The easier it is to read and understand the notice, the more likely it is to achieve its aim—namely, to get someone’s attention.
Settlement. Don’t state that accepting the terms herein will result in the dropping of a claim. Such a statement can be seen as the sending party’s rejection of an offer of settlement. If you wish to drop something, go ahead. If you do not wish to drop something, do not say you are doing so.
Abuse of the Legal System. Using legal notices merely to attempt to bring more economic leverage to a particular negotiation may be an abuse of the legal system. In some situations, the language of the "notice" can amount to a threat, and even expose the sender to an action for damages if the potential plaintiff knows that the sender has no intention of actually filing suit.
When to Seek Legal Counsel
Determining when a legal notice should be used is very straight forward, however there may be situations when it is advisable to consult a lawyer before drafting or sending a notice. If you have any doubts about whether a particular notice is appropriate for your situation, have an experienced lawyer draft the notice or at least check the notice for accuracy. Some common examples of situations when not consulting a lawyer for a legal notice may be a bad idea include:
- Drafting your legal notice is not the time to take risks with a major business deal that has been in the making for months and has major financial implications if the notice is not properly drafted and sent.
- It is very important to get the details right in any notice related to your company’s rights or obligations (despite the fact that this is true for all legal notices). In the contract setting , this is the situation where you cannot afford for the other party to claim that they did not get notice at all or sent back a notice disputing the claim and therefore the notice never happened and the matter is over. This situation is even more sensitive in the context of a negotiated termination of a contract. Any improper termination may result in the other party taking you to court.
- If you drafting a legal notice clearly as a warning to the recipient or a friendly reminder is important, because you are in an ongoing relationship with the recipient, then you should absolutely consult a lawyer before deciding how to draft that notice. A poorly worded notice could later on be interpreted in court that you intended to terminate the relationship, in which case you might be liable for losing the other party’s business.
It is advisable to discuss with your lawyer how best to mitigate any of these types of risks with your legal notice. A legal notice is a tool just like many others in your business, and if used properly (which may require help from a lawyer) it can be extremely effective.