“Quiet Enjoyment” – What does it really mean in a landlord & tenant relationship?

April 18, 2013

It is almost a certainty that any lease, be it of commercial or residential premises, will include a covenant on the part of the landlord for “quiet enjoyment” and whilst many tenants may consider that this will mean that they can legitimately complain to their landlord about noisy neighbours this is not in fact the purpose of this provision. 

Quiet Enjoyment – What does it mean?
Under Common Law all landlords are under an implied obligation to allow their tenants “quiet enjoyment” of the premises let to them meaning that a landlord must ensure that no one, be it the landlord himself or an employee or his agent shall interfere with his tenant’s right to possession of and to the lawful use and enjoyment of the premises.  “Enjoyment” in this context means to have the use and benefit of a right rather than to derive pleasure from it.  If this right is substantially interfered with a tenant may claim damages or possibly an injunction to stop the interference.

Notwithstanding the implied obligation it is usual for a lease to contain an express provision for quiet enjoyment because in this way it is possible, depending on the parties’ respective bargaining power, for a landlord to limit or for a tenant to extend the scope of the implied obligation.  A landlord may try to make the quiet enjoyment provision conditional upon the tenant itself meeting specified standards, for example paying the rents due or complying with the tenant’s covenants in the lease although the imposition of conditions must be done in a very clear way in order to be effective.  By way of contrast, a tenant may seek to extend the scope of the implied covenant to  by include the acts of a superior landlord or a third party.  A landlord should take care not to extend the covenant to include anyone over whom it has no control although it is an accepted principle that a landlord cannot be responsible for the unlawful act of another party.

Substantial Interference
It has long been understood that the word “quiet” in quiet enjoyment does not mean the absence of noise although a number of cases on the subject have been noise related.  “Quiet” in this context means without interference.  Interference with the right of quiet enjoyment must be substantial and what amounts to substantial will always be dependent upon the facts of the case.   In  the case of London Borough of Southwark -v- Mills the House of Lords rejected a breach of quiet enjoyment claim brought by a tenant against its landlord based on excessive noise caused by other tenants in the building.   It was held that the tenant took on the lease when the flats were already noisy and had inadequate soundproofing and would not therefore be successful in its claim. 

A temporary interference is also unlikely to give rise to a successful claim.  
Essentially, in order to be successful in claiming a breach of the quiet enjoyment covenant a tenant must prove that:

  1. there has been a new activity after the grant of the lease; and
  2. that there has been serious and persistent disturbance to the tenant’s occupation of the premises.

Quiet enjoyment clauses and other leasehold covenants
It is often very difficult to reconcile quiet enjoyment with other covenants in a lease.  The Court of Appeal has expressly stated that a covenant for quiet enjoyment was not a guarantee against all disturbance and that regard must be had to all the terms of the contract (lease).   In one instance a landlord erected scaffolding and carried out works to the exterior of a tenant’s restaurant premises causing the restaurant to appear closed and considerable dust and inconvenience within.   The tenant made a claim for damages for breach of the quiet enjoyment covenant.  The Court of Appeal decided in favour of the landlord and held that where the provisions of a contract (the lease in this instance) come into conflict they are to be interpreted, insofar as is possible, so as to give effect to both of them including, in this case, the landlord’s obligation, which was for the benefit of both parties, to keep the building in repair.  

In addition to the above, a landlord will not be in breach of the quiet enjoyment covenant if it enters onto a tenant’s premises pursuant to a right set out in the lease, examples include access in order to carry out an inspection or to carry out repairs.  

However,  intrusive surveys, the obstruction of a tenant’s access to the premises, the causing of damage to premises by an act or an omission taking place on adjacent property and the exercise of rights in a way that exceeds what was intended will place a landlord at risk of a claim.

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