Chris Drayton
1 October 2015

The Misnomer of Quiet Enjoyment

Chris Drayton


Tel: 02 9233 9029

Mob : 0421 006 305


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I have written previously on aspects of quiet enjoyment in leases involving a fact scenario where a landlord failed to fix a leaking roof. In that particular situation the failure to fix the leaking roof and the damage resulting from the failure to the tenant amounted to a breach of the quiet enjoyment covenant.  This can apply regardless of whether a landlord has a positive obligation under the lease to make the repair.

It is still not uncommon for landlords and tenants to believe that excessive noise is required for there to be a breach of a quiet enjoyment clause of a lease.  Where this is the case, landlords need to be made aware of the extent of the quiet enjoyment covenant – ignorance of the width can result in substantial economic loss for a landlord.

It is worth confirming that the ‘quiet’ in ‘quiet enjoyment’ is somewhat of a misnomer.  The reach of a quiet enjoyment clause goes much further.  Even those landlords and tenants who appreciate the reach of the covenant in more detail can be surprised as to just what can amount to a breach. 

As the demand for land only increases and it is more common for development on land containing multiple tenants, it is wise for both landlords and tenants to be aware of the ‘might’ of the quiet enjoyment covenant in a lease.

A typical quiet enjoyment clause will provide something along the lines of the following:

Subject to compliance with the terms of this Lease, the Lessee shall be entitled to the occupation and use of the premises without the interruption of the Lessor.

There are of course a wide variety of examples from the courts and tribunals of factual situations that have amounted to breaches of quiet enjoyment.  However, a much over-looked situation relates to breaches of quiet enjoyment that result from the use of other premises on the same piece of land.

Cases have shown that in certain circumstances where a landlord has failed to enforce lease covenants against a tenant who is alleged to be interfering with the quiet enjoyment of another tenant (and the landlord is or has been made aware of the fact) the landlord can be held to have breached the covenant of quiet enjoyment owed to the tenant suffering the interference.

Both landlords and tenants should be aware of this line of authority as it is not an uncommon occurrence.

A landlord should look to protect its position by the insertion of a clause that states it is not required to enforce lease covenants in leases of other tenants in the building or on the land and that the clause is to apply notwithstanding any other provision in the lease.

Should you have any queries on quiet enjoyment in leases and its scope or whether the facts of your situation amount to a breach or not please do not hesitate to contact myself or another member of the property team on 02 9233 7788.

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