Most leases will contain an express covenant by the landlord to provide Quiet Enjoyment.  Where such a provision is not expressed it is in any event implied into the lease.  There is a related obligation on a landlord not to Derogate from Grant and, although it is rare to find an express provision to that effect in most leases, it is also implied.  

The two issues ‘quiet enjoyment’ and ‘derogation from grant’ are closely related in the context of leasehold management and it is worth therefore considering them together.

What is “Derogation from Grant”

This is the principle that prevents a party who has agreed to provide something for the benefit of another from then later removing that benefit.  The principle protects the party who, having relied upon the promise made, is entitled to expect that promise to be fulfilled. 

What will amount to a Derogation from Grant?

The example in most text books is that of where a tenant of one piece of land takes the lease on the promise by the landlord that he can access that land across neighbouring land. Were the tenant’s landlord to then prevent access against that promise, he will have derogated from grant.  The remedy for breach of such a covenant, whether express or implied, is damages or an injunction.

What is “Quiet Enjoyment”

This covenant is often wrongly thought to mean that the landlord must ensure that the property is quiet.  It equally does not mean that the landlord has to somehow ensure that the tenants must be able to enjoy themselves - although wouldn’t that be good?

In short, it means that the tenant must be able to ‘enjoy’ (i.e. live/occupy) the property without interruption from the landlord (or his agent) and therefore rarely has anything to do with noise.

What would amount to a breach of Quiet Enjoyment?

Where the landlord unreasonably required access to the tenant’s property or perhaps was undertaking works to the development that caused a nuisance to the tenant (not restricted to noise nuisance) these may, subject to the following, amount to a breach of quiet enjoyment.  This would seem to suggest then that the landlord is prevented from doing much at the development for fear of breaching the quiet enjoyment provision.  Accordingly, it is for the tenant claiming breach of the covenant to show that the landlord’s conduct/works makes it impossible for the tenant to enjoy the property.   Lord Denning expressed in McCall v Abelesz [1976] that the question to consider is whether the offending act “substantially interferes with the tenant’s freedom of action in exercising his rights as a tenant”. For a breach to be shown, the tenant must satisfy the court that the conduct of the landlord causes ‘substantial interference’ and is something significantly more than a mere nuisance or inconvenience.

What amounts to ‘substantial interference’ will depend entirely on the individual facts of any particular case.  These may include:-

• Where a landlord by himself or his agents/contractors demands access without prior appointment or reasonable notice, save where the landlord’s attendance is reasonable in all of the circumstances (e.g. an emergency);

• Where there is some physical interference with the property, perhaps including noise, dust, demolition of part or disruption of services such as gas, electricity and water; or,

• On a more basic, but strangely more common, level where the tenant suffers some sort of harassment at the hands of the landlord.

A claim based on any of the above will need to show that the consequence was a ‘substantial interference’ with the tenant’s ability to enjoy the property. In practical terms, the interference ought to be caused as a result of the conduct of the landlord, or their agent (which might include a tenant of the landlord also).  Whilst it would be difficult to claim breach of quiet enjoyment where the nuisance was caused by a person outside the landlord’s control, such a claim is not improbable.

Worth noting is that factors present (or agreed) before the grant of the lease will not later become a breach of quiet enjoyment.  An example of this was dealt with in the cases in 1999 of Mrs Mills and Mrs Baxter which went all of the way to the House of Lords and involved flats built with no or only minimal, and wholly ineffective, sound proofing.  The fact that the tenants of each flat could plainly hear ‘everything’ taking place in neighbouring flats did not amount to a breach of quiet enjoyment and therefore the landlord was not required to fit after the event soundproofing to the building.

An example of when a breach will arise is the case of Timothy Taylor Ltd v Mayfair House Corporation & Another [2016]. The landlord had an express right in the lease to undertake building works to the property even if those impinged on the tenant’s right of quiet enjoyment.  He also had the right to erect scaffolding all around the building so long as that did not obstruct the tenant. The works, refurbishment of the flats in the building above the basement and ground floor premises occupied by the Art Gallery tenant, were lengthy and therefore so was the disruption.  Whilst the tenant accepted that the landlord was entitled to undertake the works he was displeased at the manner in which he had conducted himself and the works, and thus, after around two years, sought an injunction and damages.  The landlord was held to have acted with a lack of regard to the tenant’s needs and should have discussed and agreed with the tenant a plan of action prior to the commencement of the works.  It was not enough for the landlord to just rely on a right to do the works under the lease.

Conclusion

These areas of landlord and tenant law are commonly misunderstood.  However, it is a complex area of the law and one on which it would always be wise to seek advice where you/your client are affected or may indeed be the cause of complaint in respect of planned or ongoing works to a building. 

The approach in the first instance is to just be reasonable in how you address an issue that might give rise to a breach of covenant.  Consider the effect of the proposed conduct and, if relevant, enter into discussion with those who might be affected before you start.  If that fails, or you are unsure if it might fail once started, then seek advice promptly.

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