By David W. Robinson, Esq.
Preparing demand letters is a vital part of landlord/tenant relations. The demand letter is often the “official” start of the dispute and is one of the most important pieces of evidence used during litigation. If done well, a demand letter can lay the groundwork for resolving the dispute. Done poorly, it will hurt your chances of achieving a favorable resolution and lower both you and your company’s credibility with the landlord for future disputes. This article will provide some tips on how to prepare a demand letter to more effectively advocate your company’s position.
Cool off and prepare before writing
A good demand letter is organized, well-reasoned and persuasive. None of these goals can be achieved by writing the letter in the heat of the moment. Take some time away from the dispute to gather perspective. With a clear head, begin organizing the relevant documents and facts. Before writing the letter, organize your main points and prepare an outline of your position. It may be helpful to consult with your supervisor or a coworker to get a more objective viewpoint before writing the demand letter. You should also consider discussing the issue with legal counsel to confirm that your legal basis is supported.
Organize, then draft
It is important before you start writing to first organize all the key facts and make sure that you understand the all of the issues. Gather all of the relevant documents and cull from each the critical facts related to your dispute. As you are organizing, determine what your overall message will be and then marshal all of the critical facts that support your message.
Take some time to determine the landlord’s likely response and try to address it ahead of time. The best demand letters answer the reader’s questions/arguments ahead of time. Figure out what information will hurt your message and determine how to best mitigate these issues. Do not ignore bad facts; you will only hurt your credibility by ignoring obvious issues with your position.
Structure the demand letter
Logistically, your demand letter should have an introduction, body and conclusion. The introduction should summarize your overall message. It should only be a preview of the issues that will be discussed. The body of the letter is where you discuss the details. It is helpful to organize each of your points by paragraph and use headings to delineate between each point.
The conclusion should be where you make the demand and indicate what the next steps will be if the landlord does not provide a favorable response. Avoid making idle threats – this will only lower your credibility with the other side if you do not follow through.
Just the facts
In writing a demand letter, it is important to only rely on the facts to support your message. A strong factual foundation will make effective arguments. Avoid arguments based on emotion on conclusory arguments – these are not generally persuasive. For each fact, provide a reference to where you obtained your information (i.e. lease, tax assessors website, plot plans, etc.). It is helpful to include or attach excerpts of the supporting documents if they are not too voluminous. Remember that the lease language generally controls who wins the dispute. Accordingly, sticking to the lease provisions will strengthen your arguments greatly.
A simple message is the best message
In preparing the letter, try to simplify the message. Use terms that are common to the average reader or define the terms in the letter. Do not use acronyms or short hand without defining the terms first. Remember that your letter may be read by people who are not intimate with the ins and outs of the operative lease or even leases in general (i.e. supervisors, attorneys, judges, juries, etc.). Write the letter so a person who has little or no experience with a retail lease or the facts of your dispute can read it and comprehend the issues. If you are having trouble deciding if you are being too technical, have a third party read it for clarity.
Focus on your message
Be sure to stick to the point in the demand letter. Collateral issues will only distract from your message and potentially give the landlord the opportunity to dodge the main points at issue. Being clear, accurate and specific will drive your message home and persuade the reader. Avoid redundancy. If you said it right the first time that should be sufficient.
Use quotes to boost the credibility of your message
When quoting lease language, be sure to quote the relevant lease provision exactly; do not paraphrase key sections. Similarly, only quote the parts that you need to make your point. Leave out any “fluff” that waters down your point. If you are referring to or quoting something, be sure to cite the exact page, section and/or paragraph number so that the reader can easily find your support. Making it easy for the reader to check your facts makes your message more convincing because it illustrates that you have nothing to hide.
Watch your word choice
It is not what you say; it is how you say it that matters. Above all, be professional in your messaging. Attacking the other side adds nothing to your point and will likely escalate the dispute rather than resolving it. Similarly, avoid over the top statements or inflammatory language. Remember, this letter will likely not just be viewed by your counterpart, it will be read by their supervisor, upper management, legal counsel, and perhaps even a judge or jury. Be sure to avoid language that will embarrass you and your company. Exclamation points rarely have a place in business correspondence – treat them accordingly.
Provide a personal touch
Personalize the letter by directing it to a specific person. From strictly a practical standpoint, failing to address the letter to a specific person at the landlord will at best delay the landlord’s response. At worst, it gives your counterpart the opportunity to deny ever receiving the letter or deflect you to someone else. It is hard enough to get a response from a landlord, do not inhibit your efforts by not addressing the letter appropriately.
Reread and revise the letter
Once you have drafted the letter, read and revise it multiple times. Check to make sure the letter is clear, concise and correct. Check all the spelling and grammar. Make sure all of the quotes and citations are accurate. Check the lease to verify that the letter is being sent in accordance with the lease requirements and the appropriate persons receive copies. If possible, set the letter down and read it again a few days later. Sometimes the best ideas arise through a fresh perspective. If possible, it is also a good practice to have another person read the letter before it is sent.
File and follow up
Your job is not finished once the letter is out the door. Keep a dispute file with the demand letter, supporting documents and your notes. That way, when the landlord calls later, you will be able to get up to speed in short order. Also, set reminders in your calendar to follow up. Otherwise, the dispute may drop off your radar. Lastly, be prepared to take the next step if deadlines are missed.
If you have any questions or concerns regarding demand letter writing, or lease or other disputes with landlords, please contact the writer at [email protected]. This material is intended for informational purposes only. It is not meant to be construed as legal advice nor create an attorney/client relationship. For a comprehensive understanding of the issues raised in this material please consult with a qualified attorney of your choice.
Ruberto, Israel & Weiner, P.C.
Ruberto, Israel & Weiner, P.C. is a 28-lawyer business law firm, applying in-depth industry knowledge tailored to the needs of each client. the firm provides services in Retail, Food and Hospitality; Banking, Lending and Finance; Corporate & Business; Technology; Trust & Estates; Intellectual Property; Mergers & Acquisitions; Commercial Real Estate; Employment; Litigation; Securities; and Alternative Dispute Resolution. For more information, visit the firm at www.riw.com.