Quiet Enjoyment

Class Notes: Covenant for Quiet Enjoyment Traditionally, this covenant was not a covenant in the acoustic sense of the word ‘quiet’,  but imposed an obligation on o n the landlord to ensure that the tenant would have peaceful  possession of the premises, thus it was described as a covenant to secure title and  possession, that is to say, say, to protect the tenant’s estate. The landlord under this covenant is responsible for: a. acts acts don donee by hi him whet whethe herr the the act acts are are done done on on or of off the the pr premis emises es and and regardless of whether the acts are lawful or unlawful  b. acts done by the landlord’s servants or agents acting under the landlord’s authority [whether lawful or unlawful ! c. lawf lawful ul acts acts of perso persons ns clai claimi ming ng tit title le under under the the lan landl dlor ord d for for ee"am "ampl plee under  under  other tenants of property owned by b y the landlord The implied covenant for quiet en#oyment is not an absolute covenant and therefore, it does not protect the tenant from someone with a superior title otherwise called ‘title  paramount’. Thus, if a landlord turns out to have a defective title, the tenant will not be able to bring  proceedings against the person with a superior title to the landlord.  Jones v. Lavington Lavington [$%&'  [$%&' $ () *+'. - efend efendant ant tena tenant nt suble sublett the premis premises es to the plain plainti tiff ff subsub-ten tenant ant. . - )y an agreem agreement ent,, not under under seal, seal, the the defend defendant ant agree agreed d to /let/ /let/ to the the plaint plaintif iff  f  the premises for the term of three years. - The lease lease betwe between en the defe defendan ndantt tenant tenant and and the super superior ior landl landlord ord was was sub#ec sub#ectt to a restrictive covenant as to carrying on any business thereon. - The The plai plaint ntif ifff wasn wasn’t ’t awar awaree of this this and carr carrie ied d on a busi busine ness ss there there until until restrained by an in#unction obtained by the superior landlord. - 0n an acti action on by 1 for brea breach ch of contrac contractt for for quiet quiet en#oy en#oyment ment:-:-- 2eld, 2eld, that, that, whethe whetherr or not any any contrac contractt for quiet quiet en#oy en#oymen mentt could could be impli implied ed from from the word /let,/ /let,/ the use of that that word word did not create create an unrest unrestri ricte cted d covenant for quiet en#oyment which covers lawful interruption by a person claiming under title paramount. - The The plain plainti tiff ff was was not not ent entit itle led d to reco recove verr. Application of the Covenant

3t one one time time,, the the rule rule was was that that a tenan tenantt had had to show show that that ther theree was was a subs substa tant ntia iall interference with his ordinary en#oyment of the premises4 this is a question of fact. The classic illustration of the application of the covenan t is the case of:

 Lavender v. Betts Betts [$%5*  [$%5* * 3ll 67 8* - where where the the landl landlord ord remove removed d the the wind windows ows and doors. doors. - 2eld 2eld 9 the the acts acts of the the defe defend ndan antt were were a brea breach ch of the coven covenan antt for for quiet quiet en#oy en#oyme ment nt which which was was an impl implie ied d term term of the the stat statut utor ory y tenan tenancy cy and and the the  plaintiff was entitled entitled to punitive damages. urther, the tenant also had to show some physical interference to constitute a breach of  covenant.  Browne v. v. Flower  - the the cour courtt hel held that hat there here was was only only a los loss of pri privacy vacy,, but but no physi physica call interference. - ;taircase ;taircase was erecte erected d beside beside the window of the the bedroom bedroom of the plainti plaintiff’s ff’s flat. flat. - 1ersons 1ersons using using the the stairca staircase se could could see see directly directly into the plaint plaintiff’s iff’s bedroom. bedroom. - 2eld 2eld that the the invasi invasion on of priva privacy cy and comf comfort ort of the the plaint plaintif ifff was not not a breach breach of the the  - 2eld that this covenant is implied in any landlord and tenant relationship and that this is the only view consistent with common sense. - acts: The landlord by worAing minerals under the demised premises caused the land to subside. 2eld: )reach of covenant for @.6. nterference !ith tenant"s enjoyment of property

?ovenant protects the tenant from his en#oyment of the property being disturbed by the landlord or any person who derives title from him.

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 [$%8> $ But this decision was disapproved in avis 4above5 which held that the covenant does no confer any right to light so as to prevent a lessor from building on adjoining premises. +o where the T has not acquired a right to light)access to air he cannot interference with either as a b of co of qe - ovenant does not prevent the ordinary user of adjoining premises unless this is detrimental to the purpose 9 which the premises were let. - It was also held that there was a breach of the covenant where the lessor built Aats near the house of the lesse, that they obstructed the passage of air to the lessee*s chimney*s and drove smo$e down them with the result that some rooms were rendered uninhabitable when the wind was in the north@east or south@west and at other times could only be used with great discomfort. The correctness of  the decision is doubtful. The LL is liable for acts as well as omissions only if there had been negligence on the part of the LL in $eeping and maintaining the premises or part thereof, or any act  0illfully done or omitted to 5e done 5y te 33 in connection with it after the demise. - The LL is not liable for the defective wor$ of competent persons contracted to repair the premises or part thereof. -  The covenant for q.e. runs with the land and is therefore binding on the assignees of the reversion and available by the assignees of  the term. -  # covenant for q.e. does not oblige the lessor to rebuild or repair, in case the buildings are destroyed or injured by re, tempest or otherwise - The #ct)omission which caused the breach must be subsequent to the granting of the lease, though if it is an act)omission of a person claiming under the lessor, the title)#J under which he claims to do the act may have been given)created b9 the lease -

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Where the lessor acquires land after the lease he is not restricted by the covenants in the use of this land The covenant for q.e. will co@e!ist with the covenant not to derogate from grant. The two covenants are complimentary and to some e!tent overlapping. The true distinction would be that the obligation not to derogate from the grant is concerned with user of  the retained part which ma$es the demised premises less t for the purpose for which they were let whereas the covenant for q. e. is concerned with the enjoyment of the premises. This is a ne distinction, but it serves to indicate that breaches of the latter covenant consisting of threats or other intolerable nuisance are not within the former obligation. Whereas the erection of buildings which obstructed the passage of air to the drying sheds of a lessee of land e!pressly demised for the purpose of a timber merchant*s business, was held to be a derogation from the lessor*s grant. It is doubtful whether it would constitute a breach of the covenant for q.e.

,7press Covenant for Quiet ,njoyment/ This may be qualied or restricted or it may be unqualied or absolute. :. ualied ovenant/ This is a more frequent e!pressed covenant entered into by landlord/ 0The lessor covenants with the lessee that the lessee paying the rent reserved and performing and observing the covenants hereinbefore on his part to be performed and observed shall and may peaceably and quietly possess and enjoy the said demised premises for the term hereby granted without any lawful interruption or disturbance from or by the lessor or any person la0fully claiming 5y from or under im.1 =ote the words claiming under or in trust for him, or the words claiming by, through, or under him. =ote the following/@ The covenant commences with the words that the tenant paying the rent etc. 6eading these words one would get the impression that if the tenant defaults in payment of rent or in breach of some other covenant, then the landlord will not be held liable for the breach of q e. >ut this is not so. ,dge v %oileau/ the payment of rent or performance of the tenant*s covenants is not a condition precedent to the observance of quiet enjoyment.>y a lease it was provided that the lessors might reenter the premises if rent should be in arrears or the lessee should not $eep the premises in proper repair. The lessors covenanted that, the lessees paying the rent when due and observing the other covenants on his part, should quietly enjoy the demised premises without

interruption. The rent being in arrears and the premises out of repair the lessors served notices on sub@tenants of the lessee requiring them not to pay to the lessee any rent then due or to become due, but to pay the same to the lessors, and threatening legal proceedings in default of compliance with notice. "ne sub@tenant of the lessee, in pursuance of the said notice paid his rent to the lessor*s agent. In an action by the lessee for b of c for q e. .eld/ 4:5 The action of the lessors in the issuing of the notice to the lessee*s sub@tenants was more than a mere idle threat and amounted to a breach of the c of q e. 4B5 The  of q e was an independent covenant and the fulllment by the lessee of his covenants to pay rent and repair was not a condition precedent to his right to sue the lessors for breach of it. The words 0during the said term, means that the protection granted to the tenant endures throughout the term of grant and does not cease with the estate of the landlord as does the protection granted under the implied covenant. The question arises as to how many of the three aspects are relevant in the event of breach of the covenant in this form. Jnder the covenant(a) the tenant is entitled to be put into possession, (5) the T is entitled to have quiet possession but only in a limited or qualied way and the words which may qualify the covenant are 0Without any interruption by the landlord or any person li$ely claiming under or in trust for him1, so that the tenant is protected.(c)  against all acts of  interruption of the landlord himself. The LL will not be liable for 4i5 an act of interruption which is permitted by the lease, for e!ample , to view the state of repairs and 4ii5 ivil protection against acts of interruption by persons  lawfully  claiming by, through, or under the landlord, for e.g. , acts of another T, the LL is only liable for the lawful acts of such persons. 4iii5 acts of persons with 0 Title paramount1. .arrison v +uncaster at page &!: The C leased to the 2ar$side ining o. a mine for use as an Iron mine, subsequently he leased to the 2, an adjoining mine for the same purpose, the lease for the 2 containing a cov. Kor q e for the mine, 0without any interruption or eviction by the lessor, his heirs or assigns or any other person or persons claiming". +o T can recover damages ltd to losses Aowing naturally from the breach e.g. for inconvenience, damage to his property)9 replacement)repair, costs of ct proceedings & if the T was forced to leave , 9 removal cost.

Where L sought to drive T from the premises by harassment T may wasn*t to see$ aggravated damages 9 metal distress) e!emplary damages as a punitive measure may be available. =ote harassment may also constitute a criminal o%ence. /alentine v. &a'persad 0 TT: 6 purchased house occupied by .  #fter the purchase  o%ered to pay rent to 6 but 6 refused as he informed her that he intended to demolish the accommodations.   sent the rent by post anyway. 6 terminated the tenancy by notice. 6  then dumped loads of gravel on the premises & removed galvaniEed sheets from unoccupied rooms. 6 however did not obtain an order 9 possession till some time later. The trial jusge found that aggravation should be ta$e into a)c in assessing compensatory damages but declined e!emplary damages. # held/ that there was a clear case of  harassment & ruthless disregard to the T*s rights. The 6*s conduct was e!cessive & warrant punishment b e!emplary damages. - T will only get damages 9 mental distress where the contract is to provide pleasure, peace of mind or freedom from molestation/  Jarvis v. S!an To$rs. The # in Bran"hett v. Beaney said obiter that the c 9 qe does not fall within this category, so a T pursing a claim 9 breach of c of qe will not be able to recover 9 metal distress, but must pursue a claim in trespass)nuisance =ote however/  Brink'an o$glas v. Ma5orie Bo!en: 0 J0: LL bulldoEed the property, even though he $new the notice to quite served on the T was invalid. T awarded compensatory damages, e!emplary damages F 9 the most outrageous trespass & disregard of  rights & calculated misuse of power. The amount was upheld by the # who noted that included mental distress by reason of the #*s conduct in evicting her. - LL*s act of breach may also involve a tort 4which gets u more G5. '!emplary damages may be awarded where the LL has calculated that he may ma$e a prot by the tortious act, or 9 trespass. The  must however claim speacically 9 e.g. 9 damages 9 trespass. -  rane v 1vangelo$/ award of punitive or e!emplary damages made in an action involving breach of quiet enjoyment, not 9 the breach for trespass4tort5. 2"I=T/ L#I K"6 T?'+' T?I=M+ I= T"6T - Where there has been no actual eviction, the damages are only sustained at the commencement of the action. >ut where the tenant has been ejected, damages for breach of the covenant will include the value of the term lost, the costs of defending an action of ejectment and any sum recovered against the tenant for mesne prots. - The court may also grant an injunction. This is a discretionary remedy and would only be granted where damages would be inadequate. ost breaches of this covenant can be compensated for by an award of damages. -