There is an old thought experiment about a tree falling in an empty forest and whether it makes a sound. On July 10, 2026, Florida's Fifth District Court of Appeal answered a legal version of that riddle, and its answer deserves the attention of anyone whose rights turn on the giving of notice, which is to say nearly everyone who owns property, signs leases, or lives under the governance of an association. In Hitchens v. Murrell, the court held that a notice exercising a right of first refusal was legally effective the moment it was placed in the mail, regardless of whether the intended recipient ever received it. The seller's claim that he never got the letter, which the trial court had credited, turned out not to matter. The mailing was the event. The receipt was beside the point.
The dispute arose from a familiar and sympathetic setting. Tom and Kay Murrell owned a condominium in Cocoa Beach and wished to sell it to a longtime tenant and friend at a generous, below-market price. Their building's Declaration of Condominium, however, gave every other owner a right of first refusal, meaning the neighbors could step into any sale and buy the unit themselves on the same terms. A fellow owner, Steven Hitchens, did precisely that. He sent notice of his intent to purchase by certified mail, within the time the Declaration allowed. The Murrells, wanting no part of a sale to him, canceled the friendly deal, returned their friend's deposit, and refused to sell to anyone. The neighbor sued to force the sale, and the question that decides the case is deceptively simple. When did his notice count?
The trial court thought receipt was required and found that the seller had not actually received the letter. The appellate court reversed, and it did so on the strength of a single sentence in the Declaration, which provided that notice "shall be sent by certified mail and shall be effective on the date of mailing." That clause did something quietly radical. It relocated the legal moment of notice from the recipient's mailbox to the sender's outbox. Ordinarily, Florida law has required a party exercising a right of first refusal to prove that the other side received the notice. A community is free, however, to write its governing documents differently, and Las Palmas had done so. Once the drafters made mailing the operative act, actual receipt became legally irrelevant. The court was refreshingly honest that fairness might have pointed the other way, observing that the equities of the case "may entice otherwise," but it held that the plain language controlled.
That holding is unremarkable as a matter of contract interpretation. Its consequences are what merit reflection. A rule that makes notice effective on mailing shifts a meaningful risk from the sender to the recipient, and it does so in a way that most people never contemplate until it is too late. Under such a provision, a letter lost by the postal service, misdelivered, or simply never received is nonetheless fully effective against the person who never saw it. The recipient bears the loss for a failure entirely outside his control. Deadlines run, options ripen, and rights are exercised or forfeited, all on the strength of an envelope that may never have arrived. For the party expecting to hear something, silence is no longer safe, because silence and effective notice can now look identical.
This is where the tree in the forest becomes more than a metaphor, and where the reader is right to feel a certain unease. If effectiveness attaches at the instant of mailing, and receipt is no defense, then the entire dispute can reduce to whether a mailing occurred at all. Suppose a party claims to have mailed a notice that the other side insists never came. Under a receipt rule, the recipient's testimony that nothing arrived is powerful, often decisive. Under a mailing rule, that testimony is close to worthless, because non-receipt is exactly what the clause renders immaterial. The contest instead migrates to the harder and murkier question of whether the letter was ever deposited in the first place, a fact peculiarly within the knowledge of the person asserting it and difficult for anyone else to disprove. The rule that was meant to bring certainty about timing can, in the wrong circumstances, invite uncertainty about occurrence.
It would be a mistake, though, to overstate the danger, and intellectual honesty requires acknowledging the guardrails that remain. A mailing rule does not permit a party to conjure notice out of thin air. The claimant must still prove that a mailing actually happened, and the Declaration here did not accept just any mailing but required certified mail, a method that by design generates a receipt, a tracking number, and a dated record at the post office. Those artifacts are not trivial to fabricate, and their absence would badly undercut anyone claiming to have sent a notice that no one received. The court in Hitchens did not confront a phantom letter. It confronted a certified mailing whose dispatch was established and whose only deficiency, in the seller's telling, was that it had not reached him. On those facts the rule works cleanly and even sensibly, because the sender did everything the document asked and should not lose his rights to the vagaries of delivery.
There is a further wrinkle that cuts against complacency, and it concerns the mails themselves. Certified mail is often assumed to be a gold standard of reliability, but the assumption is generous. The postal system misroutes, delays, and loses correspondence with a regularity that anyone who has waited for an important letter can attest to, and certified mail, for all its tracking, is not immune. Notices are left uncollected, delivery attempts are recorded for addresses no one is watching, and items marked as sent are never scanned again. This matters greatly under a mailing rule, because certified mail solves only half of the problem. It supplies reliable proof that a letter was dispatched, which is what defeats a fabricated claim of mailing. It supplies no assurance that the letter ever arrived, which is the thing the recipient actually cares about. In a receipt regime, the unreliability of the mails falls on the sender, who must try again if his letter goes astray. In a mailing regime, that same unreliability falls on the recipient, who is bound by a communication the postal service failed to deliver and that he had no way to anticipate. The known imperfections of the mail do not undermine the rule so much as they reveal who pays for them, and the answer is the party with the least ability to prevent the loss.
These imperfections are neither hypothetical nor rare. According to reporting by WBUR's On Point program in a May 2024 broadcast titled "Big changes and big problems at the U.S. Postal Service," the agency's recent restructuring has produced sustained delivery failures of exactly the kind that a mailing rule punishes. As the program and its guest, a Richmond Times-Dispatch investigative reporter, described, Richmond, Virginia became an early test site for a sweeping reorganization of postal operations, and residents there began finding that letters and packages sat in local facilities for weeks or vanished entirely. One listener told the program that she had mailed a check for her property taxes that was simply never received, leaving her to absorb penalties and interest on a payment she had in fact sent on time. In another episode the reporting recounted, hundreds of time-sensitive medical screening tests went undelivered until they had expired. Now transpose those ordinary failures onto a legal deadline. A property owner who mails a notice that never arrives may still be told his rights are perfected, while a recipient who never sees the letter may still be bound by it. The very unreliability that, in the account WBUR relayed, cost a Richmond taxpayer her penalties is the unreliability that a mailing rule converts into a permanent forfeiture or a permanent obligation, depending on which side of the envelope one happens to stand.
The genuine exposure created by the ruling is therefore narrower than the thought experiment first suggests, but it is real. It lies in the space between a bare, unverifiable assertion of mailing and a fully documented certified dispatch. The more a governing document demands in the way of verifiable mailing, certified mail, return receipts, tracking, contemporaneous copies, the smaller that space becomes and the less room there is for a false claim of mailing to succeed. The less a document demands, the wider the space grows. A clause that makes ordinary first-class mail effective on deposit, with no proof of anything beyond a party's say-so, would carry precisely the risk that the tree-in-the-forest question implies. Hitchens is comfortable partly because the Declaration was not so lax.
For those who draft, review, or live under these instruments, the collateral lessons are practical and considerable. Anyone writing a declaration, a set of bylaws, a lease, or a commercial agreement should treat the notice provision as a substantive allocation of risk rather than boilerplate, and should decide deliberately whether notice ought to be effective on mailing or on receipt, and what proof of mailing the document will require before it will honor the earlier date. Anyone sending a consequential notice should use the most verifiable method the document permits and preserve every scrap of evidence that the mailing occurred, because that evidence is now the whole ballgame. And anyone who might one day be on the receiving end should understand that under a mailing rule, the absence of a letter in the mailbox protects them far less than intuition suggests, and that monitoring deadlines independently, rather than waiting to be told, becomes a matter of self-defense.
The problem sharpens considerably where the governing instrument requires notice by ordinary United States mail rather than merely permitting it. A clause of that kind fixes the least verifiable and least reliable channel as the exclusive means of communication, and if it also makes notice effective on deposit, it attaches decisive legal consequence to the very act least capable of confirmation. That combination is why the negotiation of notice covenants, so often treated as an afterthought once the commercial terms are settled, deserves attention commensurate with its consequences. A well-drafted covenant provides for alternative and more reliable means of delivery, such as hand delivery, a nationally recognized overnight courier, or electronic transmission with confirmation of receipt, and it does not stop at prescribing how notice may be sent. It also addresses when notice is deemed given, and the more protective course for a party who cannot afford to be bound by a communication it never saw is to require actual receipt, or at least to pair any mailing rule with a deemed-receipt provision that reflects the realities of delivery.
Requiring receipt is not, however, a cure-all, and candid drafting acknowledges its own failure mode. A pure receipt requirement invites the opposite abuse: the recipient who evades or refuses delivery precisely to defeat a notice he would rather not acknowledge. The sounder solution is layered rather than binary, offering several permitted channels, each with its own rule for when notice becomes effective, so that a party acting in good faith can always perfect notice through some reliable route while a party acting in bad faith cannot manufacture a loophole by declining the mail. The lesson is not that mailing rules are indefensible, but that the terms governing notice must be chosen deliberately and drafted with their consequences in view.
All of this rests on a premise the appellate court applied without apology and that every contracting party should internalize. Courts do not rewrite contracts, nor do they relieve parties of their improvident bargains. The Fifth District said as much when it acknowledged that the equities might have counseled a different result and enforced the declaration's plain language regardless. A notice provision that allocates risk unwisely will be enforced as written, and the moment to correct it is when the instrument is drafted, not in the courtroom after a letter has gone missing.
The court decided Hitchens correctly on the language before it, and the outcome is defensible. But the decision also quietly redistributes a risk that most parties never negotiate and rarely notice, the risk that the legal world will treat a notice as delivered when, in fact, it never arrived. The forest, it turns out, does make a sound when the tree falls, whether or not anyone is there to hear it. The task for careful parties is to make sure that the falling is always documented, so that the sound can never be invented after the fact.
Alex P. Rosenthal and Rosenthal Law Group represent clients in contract drafting, commercial litigation, and appellate matters throughout Florida. This commentary is for informational purposes only and does not constitute legal advice. If you are a judgment creditor pursuing collection or a non-party responding to post-judgment discovery, contact our office at 954-384-9200 or www.rosenthalcounsel.com to discuss your options.