The Mailbox Rule Can Protect You When Residents Say a Letter Didn't Arrive
Oct. 18, 2013 — Homeowners often claim that they did not receive notice from the condo / co-op board or management of a delinquency in their common charges or monthly maintenance. Sometimes this assertion comes up after the board files suit against the homeowner. Fortunately, the "Mailbox Rule" can allow you to overcome this allegation.
The Mailbox Rule is a common-law principle of contract law that when mail is properly addressed and deposited in the mail, with postage properly prepaid, there is a presumption that it was received by the addressee. The board and management should maintain copies of the notices that were sent to the homeowner, as these can be important pieces of evidence at trial to rebut the homeowner's claim. If litigation has not yet been commenced, providing copies of the notices to the homeowner can clear up questions the homeowner may have had and ultimately resolve the issue without litigation.
Homeowners are typically required to notify the board / management of their mailing address. Similarly, cooperatives and condominium associations have obligations to follow when providing notices to homeowners.
For example, if your governing documents require certain notices to be sent to a homeowner via certified mail, the board / management should send the notices via certified mail. But note: While certified mail provides proof that the notice was sent out on a certain date, if the notice is not accepted by the homeowner, there is no presumption the notice was received. Therefore, you may want to send the notice via regular mail as well. By doing so, if the certified letter is not accepted and the letter sent by regular mail is not returned, the presumption remains under the Mailbox Rule that the letter was received.
Gina Botti is an attorney at Winzenburg, Leff, Purvis and Payne, focusing on litigation and assessment collection for community associations. She graduated magna cum laude from the University of the District of Columbia, David A. Clarke School of Law, in 2007. This is adapted from her article on her firm's website.
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