In every tenancy there is an implied right if not an express covenant that promises that the tenant is able to possess the premises, not just without noise, “quiet enjoyment” as the term implies, but in peace and without “without disturbance by hostile claimants”, including from the landlord.
In the case of Jafari v Tareem Ltd (2019), Jafari had a lease of a dental practice located in a building in which the landlord was in the process of redeveloping for other tenancies. As could be expected, this involved noisy works and the erection of scaffolding outside the dental practice, which Jafari claimed affected the dental practice business and operations.
Exactly what constitutes a breach of the covenant of quiet enjoyment is open to conjecture, a matter of degree and of how permanent the disturbance is likely to be.
Residential tenants also expect and should understand that their leases contain obligations that their landlord owes to them in terms of quiet enjoyment. One of the principal covenants that exists in just about every residential lease is one of “quiet enjoyment”.
Does “quiet enjoyment” mean I am entitled to a quiet property?
A popular misconception by some residential tenants is that quiet enjoyment means that they should enjoy a literally and totally quiet property. Therefore, tenants who experience noise nuisance will often cite their covenant of quiet enjoyment, but unfortunately for them it’s a misinterpretation of what the covenant means.
One cannot take the term ‘quiet enjoyment’ too literally. Lord Denning explained this in McCall v Abelesz: the question is not about noise, but whether the offending object, “substantially interferes with the tenant’s freedom of action in exercising his rights as a tenant”.
Examples of undue interference might be where a landlord:
- constantly visits the property without prior notice, unless there is an emergency such as a gas leak etc,
- demands to do inspections without a proper appointment
- sends in workmen without giving notice to or agreeing with the tenant in advance
- interferes with the property in some way, for example building work or demolition, or interfering with utilities supplies: telephone, internet, gas, electricity, water etc
- physically threatens or otherwise harasses the tenant, either verbally or in writing, with the aim of forcing or coercing a tenant out.
Noise nuisance could amount to a breach of the covenant of quiet enjoyment, but it’s not the only interference that breaches the covenant. It must be so significant that it prevents a tenant from using the property as intended. Mere inconvenience is not what would meet the criteria.
Also, it depends on who is causing the noise problem. If it’s caused by a third party and outside of the landlord’s control, then it would be difficult to come up with a credible argument that the landlord was in breach of the covenant.
It is also difficult to blame the landlord for a nuisance resulting from a pre-existing condition, one in existence before the start of the tenancy, or one which the tenant could easily have been aware of, such as loud traffic noise. For example, bad sound insulation in a block of flats has been held not to be a breach of the covenant of quiet enjoyment.
Going back to Jafari v Tareem, the landlord had waived the rent for the period of the works as a goodwill gesture in compensation for the disturbance. Jafari, however, claimed that the works irreparably damaged his business’s profitability and withheld further rent payments.
The High Court on appeal examined whether in the case the offer of compensation was relevant to the question of whether a landlord was in breach of the covenant for quiet enjoyment. It concluded that it was and held that the landlord had taken all reasonable steps to minimise disturbance to Jafari.
The rent waiver, the court held, was reasonable compensation for the disturbance in what might have otherwise been an unreasonable situation.
The lessons from this case:
Landlords should be aware that noise nuisance or any other interference with a tenant’s “quiet enjoyment” of a property can have consequences if this is not kept to a minimum. Where appropriate it may require some form of compensation, like a rent holiday or rent reduction.
Landlords often fail to grasp a basic fact of tenancy law: that in effect, and during the course of the tenancy, the tenant is “the owner of the land and property” is entitled to treat it as such, and can exclude everyone, including the landlord.
Landlords when granting a lease, especially in the case of commercial premises, where works are often required in the premises, or those adjoining, should include a “right to build” or “right to refurbish” clause that expressly qualifies the covenant of quiet enjoyment.
Even so, the degree of interference will be open to a court’s determination in each and every individual case, but if an offer of compensation is considered appropriate, and substantial enough, there may well be no valid claim for further damages.