Last edited 09 Sep 2016

Quiet enjoyment

Leases, whether for a commercial or residential properties, are likely to include a ‘quiet enjoyment’ covenant. This provides the tenant with the right of possession during their tenancy, with the entitlement to enjoy the lawful use and benefit of the property free from the landlord’s interference. If this is breached, the tenant can seek either an injunction to restrain the interference or seek damages for losses caused by the interference.

Under common law there is an implied obligation for landlords to allow their tenants ‘quiet enjoyment’ of the premises. However, leases usually contain an express provision which overrides the common law covenant. This allows the parties to negotiate on the terms of the respective obligations, such as the landlord making it conditional on the tenant paying the rents due, or the tenant extending the covenant to include the acts of a third party or superior landlord. The landlord should take care not to extend the covenant to include anyone over whom they have no control, although the principle that they cannot be held responsible for another party’s unlawful act is generally accepted.

The term ‘quiet’ does not necessarily imply that the interference is strictly noise-related. It is taken to mean ‘without interference’. The landlord need not have taken a positive step for it to be interference; it may also result from their failure to act. A temporary interference is also unlikely to result in a successful claim.

The facts of the individual case will determine whether the interference is substantial enough for the landlord to be held liable. Activities that occur before the lease has been granted will not amount to substantial interference, since the tenant is deemed to have accepted the lease in the knowledge of said interference.

This was the ruling in the case of London Borough of Southwark v Mills, where the House of Lords rejected a breach of quiet enjoyment claim made by a tenant of a building that was noisy due to the behaviour of other tenants. They held that the tenant accepted the lease in the knowledge that the flats were noisy and were not adequately soundproofed.

Claims are unlikely to be successful unless there has either been a new activity after the lease has been granted, or there has been serious and consistent interference with or disturbance of the tenant’s occupation of the premises.

Circumstances that have been deemed to constitute breaches of quiet enjoyment include:

Where flooding has been caused by water from the landlord’s neighbouring property.
A significant obstruction of access to the property.
Excessive noise and pollution caused by work on the landlord’s neighbouring property.

Scenarios where claims are unlikely to be successful include:

The landlord letting neighbouring property to a business competitor of the tenant’s.
The landlord carrying out lawful acts, such as carrying out an inspection which results in substantial interference.
Activities that result in interference that takes place outside the property.
Where a third party who has had the covenant extended to them by the landlord causes interference by unlawful acts.