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 subsub-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 <<’ <<’s cove covena nant nt for for quie quiett en#o en#oy yment ment as ther theree was was no phys physic ical al interference. 2owever in Owen v Gadd and others o thers [$%+= * 3ll 67 *>, the court of 3ppeal held that the erection of scaffolding in close pro"imity to the shop entrance and window of the demised premises constituted a breach of the covenant. This is because the scaffoldings impeded the access of the public to the shop window. Today there is a movement away from the traditional view that there must be physical interference before a tenant can establish a breach of the covenant. Kenny v Preen [$%=* Preen [$%=* ' 3ll 67 >$5 - the the ?our ?ourtt of 3ppe 3ppeal al held held that that ther theree was was a brea breach ch of cove covena nant nt for for quie quiett en#oyment although there was no physical interference. - acts: acts: << after after servi serving ng notice notice to quit, quit, started started threa threaten tening ing the tenan tenantt by letters letters and in person that she would evict her and her belongings from the premises. - ;he was was shou shouti ting ng at at her and ban bangi ging ng on the the door door.. - 2el 2eld: brea breach ch of cove covena nant nt for for @.6.4 .6.4 there here was was an elem elemen entt of phy physica sicall interference by repeatedly AnocAing on the door and shouting threats which were bacAed up by threatening letters. Sampson v. Hodgson-Pressinger Hodgson-Pressinger [$%>$ [$%>$ ' 3ll 67 8$&. - 1 was was reside resident nt in flat flat 8 as as a tenant tenant44 $ became became resi residen dentt in flat flat % above. above. - )eca )ecaus usee of the the fault aulty y cons consttruct uction of $’ $’s roof oof terr errace, ace, 1 coul could d hear hear everything going on up there 9 footsteps and conversations. - The The noi noise se was was e"c e"ces esssive. ve. - 1 brough broughtt acti action on agai against nst $ and and the landlo landlord, rd, *. - 2eld: 2eld: * * liabl liablee for for breach breach of coven covenant ant for for quie quiett en#oy en#oymen ment. t. ;ince these decisions, a number of cases had to consider whether acoustic disturbance can amount to a breach of the covenant.
Southwar LB! v "ills - The appellants were local authority tenants occupying flats which had no sound insulation. - They could hear all the activities of their neighbours in ad#oining flats: babies crying, television, cooAing, cleaning, love-maAing and quarrels. - 2< held that there was no breach of covenant for @.6. 9 tenant taAes a demised premises in the physical condition in which he finds it and sub#ect to the uses of others in ad#oining premises. - Their complaint was solely about a structural defect which e"isted when they tooA their tenancies.
Breach of the Covenant of Quiet Enjoyment ;ee the articles. @uiet en#oyment cases are essential. ;ee the Southwar cases [*&&$ $ 3? $, or [$%%% 5 3ll 67 55%.
The covenant for quiet en#oyment cannot be avoided. 0f the lease agreement does not include the covenant, the covenant will be implied by common law and statute. The Express Covenant for Quiet Enjoyment
The e"press covenant for quiet en#oyment or title in any form will displace the implied covenant, which is always a qualified covenant. 3n e"press covenant is usually qualified however, and will have the same effect as the implied covenant, but will have the added advantage from the tenant’s point of view of enduring throughout the term granted. 3s long as it is limited to protecting the tenant from lawful eviction or interruption by the landlord or anyone claiming by, from, or under him, it will be construed as qualified and will not protect the tenant from eviction by someone with a title paramount. 2owever, an e"press covenant for quiet en#oyment may be drafted so as to include even a claim by title paramount, or a person with a superior title. 0f the tenant is in a position to negotiate for an e"press covenant for quiet en#oyment and included a person with a superior title, then the landlord would be bound by that agreement and would therefore have to compensate the tenant accordingly. 0t may be difficult to get a landlord to agree to such an agreement. The e"press covenant where it e"ists must be read carefully, however, it is usually nothing more than a repetition of the common law position or statute. Remedies For Breach of Covenant
3 tenant may either seeA an award for damages for breach of contract, or they might seeA an in#unction. There are a number of Best 0ndian cases where we have seen e"cessive tactics on the part of the landlord. ;ee the case of #ouglas v. Bowen $%85 ** B07 '''. ;ee also the case of $alentine v. %ampersaad $%8& $8 B07 $*Trinidad and #rane v. &vangelou [$%8> * 3ll 67 5'8)ritish$ where the tenant after seeAing a declaration of rent returned home to find his things outside and the doors locAed to him and several persons in occupation. amages will be measured by the loss resulting from the breach. 0n addition, the court can grant damages for mental distress. The wrongful conduct of the landlord, may also amount to a tort in which case aggravated or e"emplary damages may be awarded. $alentine v. %ampersaad $%8& $8 B07 $* - << told T that he intended to demolish the premises, and advised T to seeA alternative accomodation. - << then gave T notice to quit. - )efore T moved out <<’s worAmen entered the premises without <<’s Anowledge or consent and fell a tree that destroyed the latrine. Cthis was never properly replacedD. - BorA on the premises continued over the months including the dumping of gravel and the removal of roof over the unoccupied room in the house. - 2eld: 6"emplary damages were properly awarded as <<’s actions were oppressive. #ouglas v. Bowen $%85 ** B07 ''' - T was a monthly tenant. - 1remises were used for her dwelling and as a night club. - Terrace was constructed which housed a piano and the terrace served as a bar. - T failed to pay rent a month because she was away but she paid it when she got bacA. - << gave T notice to quit by Ectober $=. - En Ectober $8 << caused a bulldoFer to demolish the terrace. The piano was found on its side and other effects of the establishment were destroyed. - 6lectricity and water were cut off and << caused T’s furniture to be removed and damaged. - 2eld: <<’s actions also amounted to a cause of action in tort for loss of use and en#oyment of the house and trespass to goods. - 3lso T was awarded with general and special damages and also e"emplary damages.
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[$%8> $ B<7 5++
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#rane v. &vangelou [$%8> * 3ll 67 5'8*. Tenant successfully sought review of rent. ?ame home one day and found that he was locAed out of house and his possessions were thrown outside. Got in#unction preventing landlord from denying him access to maisonette. En 3ppeal held: 6"emplary damages could be awarded for the unlawful eviction of a tenant by harassment.
njunction
The grant of an in#unction is a discretionary remedy, and will only be granted where damages would not be an adequate remedy. ;o a tenant might obtain an in#unction to prevent a landlord from breaching the covenant for quiet en#oyment where damages would not compensate for the inconvenience. Generally however, it will not be easy to get an in#unction in landlord and tenant matters because most breaches of covenant can be compensated for by an award of damages. #rane v &vangelou -
The ?ourt did grant an in#unction based on what the #udge said was the monstrous behaviour of the landlord.
Additional Notes: mplied Covenant
The covenant for quiet en#oyment is implied in any landlord and tenant relationship, whether the lease is written or oral. "arham v Paget $%&> - 2eld that this covenant is implied in any landlord and tenant relationship and that this is the only view consistent with common sense. - acts: The landlord by worAing minerals under the demised premises caused the land to subside. 2eld: )reach of covenant for @.6. nterference !ith tenant"s enjoyment of property
?ovenant protects the tenant from his en#oyment of the property being disturbed by the landlord or any person who derives title from him.
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[$%8> $ B<7 5++
0t was originally regarded as a covenant to secure title or possession but now it e"tends to 9 3ny substantial or physical interference with the tenant’s ordinary and lawful en#oyment of the property Southwar LB! v "ills. %am v %amisson -
<< wished to recover possession of the property. 2e instituted proceedings against T. Bhile proceedings still pending he removed sheets of Finc from the roof. 3s a result when it rained water seeped through to the floor of the rooms causing T loss and physical damage. 2eld: )reach of covenant for quiet en#oyment
#isconnectin$ %tilities
Perera v $andiyar - The landlord will be in breach of the covenant for @6 if he disconnects the main services of the demised premises. 'apper v "yrie - << disconnected the electricity and told T, H0 cut off your light because 0 want you to come outI - 2eld: the supply of electricity was a benefit which was incidental on the rental of the premises. - Thus cutting it off was breach of covenant for quiet en#oyment. Bloc&in$ 'assa$e!ay
Saul and Saul v Small - The blocAing up of the passageway of T by the <<, and the barring of the Aitchen door was more than a mere interference with the comfort of the plaintiffs. - 0t amounted to a physical interference with the en#oyment of the demised premises. Construction ( Effectin$ Repairs
?arson: -
Bhere interference or disturbance is caused by worAmen conducting repairs on the building it will only be seen as a breach of covenant for @6 is such interference goes on for an e"cessive amount of time and is therefore seen to be unreasonable. - ;hould be noted that when conducting those repairs the landlord is doing what he is covenanted to do 9 maintain the building.
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Thus, the chances of successfully complaining about this are slim, especially if the interference is only temporary and hence not unreasonable. 6.g. two weeAs.
2owever, if the disturbance by the repairJconstruction is substantial it will be a breach. Owen v Gadd - ;caffoldings erected by <<’s worAmen were held to be a breach of covenant for @6 as they blocAed the public’s access to T’s shop. - 7omer
There is no breach of covenant if the premises has an inherent defect of which T Anew of when taAing possession. Southwar LB! v "ills - 2eld that T’s complaint was ultimately one about the apartments not being sound-proof. - This was a structural condition which e"isted at the time of the grant.
No lia)ility for mere invasion of privacy
Browne v Flower - ;ee above ACT* of T+R# 'ARTE*
<< is liable for the rightful acts of third parties who derive title from him. 3cts are ‘rightful’ if the landlord has given proper authorisation or consent for those acts to be carried out.
Sanderson v Berwi( 'weed !orporation - Ene of <<’s other tenant was granted the rights to use a drain across from T’s field. - Bater discharged by the other tenant leaAed through the drain and flooded T’s land. - 2eld: )reach of covenant for @6. Lnauthorised 3cts of third parties will not maAe << liable. Ba+ter v !amden Borough !oun(il - 2ouse of
Additional Cases
*nderson v Oppenheimer - << not liable for damaged caused by water which leaAed from a broAen pipe because he had done all he could to properly maintain the pipe. - Thus no breach of covenant for @6 Bran(hette v Beaney 2eld: ;ince the ob#ect of a covenant for quiet en#oyment in a lease or tenancy agreement cannot be described as being to provide peace of mind or freedom from distress, damages for in#ured feelings and mental distress are not recoverable for breach of a covenant for quiet en#oyment #avis and 'own Properties
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<< constructed a building on the property ad#oining the demised premises. The building was of such a height that it caused T’s chimney to smoAe and this materially affected T’s en#oyment of one of the rooms in his house. 2eld: No breach of covenant for @6 since as at the date of the demise, << had no interest in the ad#oining premises.
Jarvis v Swan 'ours T will only get damages 5 mental distress where the contract is to provide pleasure, peace of mind or freedom from molestation: Oiller v 6mcer 1roducts
C# Notes:
Covenants of Quiet enjoyment Implied covenant: - Where a lease or tenancy is granted whether by deed, in writing, or orally, there is always implied a LL covenant for the quiet enjoyment of the demised premises. - The covenant is to be implied from the mere relation of LL & T (Mark v. Paget, applied Tapper v. Myrie). It is implied both at L and under statute. - This implied covenant protects the T from interference with his right to e!clusive possession . It can provide T with a "# in situations ranging from harassment by the LL to failure to $eep property in good repair. - The covenant will not be implied where there is an e!press . If it is set out, it e!cludes the implied covenant in so far as they cover the same ground. It is important because the nature and legal e%ect of each covenant may be di%erent. #t L, in the absence of an e!press clause for ' , # qualied underta$ing of the covenant is implied from the mere e!istence of the relationship of LL and T. - This covenant consists of ( obligations. (1) A qualied undertaking as to title the LL underta$es that he has su%icient interest in the property to be able to put the T into possession. This is not an absolute underta$ing as to title by which a LL underta$es that he)she has su%icient interest to be able to grant the whole of the T*s term. +o if I rent a house from enneth and then sublet a room to elley- a wee$ later my tenancy e!pires & enneth then see$s to evict elley, elley has no remedy against me. "n the day I rented the premises to elley, I had a su%icient interest to put her into possession & that is all that is required by qualied underta$ing as to title. Stranks v. St. John and Baynes v Lloyd 1!"# $ Q% &1' especially at &1/ held that assuming that in the absence of the word 0demise1, either of such covenants 0that is, for title and for q e1 could be implied in the lease, the duration of the covenant was limited by that of the lessors own estate and that consequently the 2 could not recover.3 ($) An undertaking to put te * in possession 4clearly a LL cannot claim to grant a person a tenancy & then refuse to put him into possession, to do so would be to deprive the T of e!clusive possession5 on the day the tenancy commences per 6omer L7/ +iler v ,mcer -allis v .ands 4p 895/The 2 in :88;, too$ a lease of certain minerals which, to his $nowledge had already been included in a lease to other parties, which had been granted in :889. The 2 never entered into possession under the lease, although it purported to be a lease in possession. In :888, the lessees of the :889 lease assigned the term
demised. The 2 brought an action against, the assigns in order to est the priority of his own title over them and against his lessor, on the implied covenant for quiet enjoyment for his lease contained no such e!press covenant. Held: # person having only an interesse termini cannot maintain an action on a covenant for quiet enjoyment, neither can he maintain an action for trespass or for damages. hitty 7, 0 the essence of a breach of covenant for quiet enjoyment of a lease appears to me to be a disturbance of the lessees* possession. In /anderson v %es0ick .There has been no disturbance of possession in this case. The 2 has merely an interesse termini under the lease of :88;, he has not only never been in possession of the property comprised in that lease but there is no evidence of his ever having ever attempting to ta$e possession<. =.>. #cc to ?&6 the doc of interesse termini has been abolished. (2) A qualied undertaking to allo0 te * quiet enjoyment of te premises ?aving entered into the relationship of LL & T it is implied that the LL has underta$en not to do acts that would tend to deprive T of the full benet of the right to possession. *Kenny v Preen*: LL sent threatening letters, banged on the door and shouted abuse at the T. It was held to be a breach of the c of q e. The LL was in breach of his c of q e and an inj. had been rightly granted because a5 on the facts there had been a course of conduct on te 334s part amounting to direct pysical interference 0it te *4s enjoyment of te premises demised b5 ,ven if tere ad 5een no pysical interference 0it te *4s possession and enjoyment of te demised premises6 te 33 conduct ad seriously interfered 0it te tenant4s freedom of action in e7ercising er rigt of possession6 ad tended to deprive er of te full 5enet of tis rigt, and was an invasion of her right to remain in possession undisturbed, and so in itself constituted a breach of the covenant. - # LL does not commit a breach of an implied covenant for quiet
enjoyment merely by asserting the T*s title and right to the pos. of premises has been validly determined, if he believes the assertion to be true, not even if he so asserts frequently, emphatically and rudely, nor does he commit such a breach for threatening proceedings to the court for pos. and damages- 5ut a course of conduct involving treats of pysical eviction and removal of te *4s 5elongings in a deli5erate e8ort to drive te * out6 togeter 0it a su5stantial element of pysical interference(suc as repeated knocking and souting treats)6 does constitute a 5reac6 and can do so even if tere is no direct pysical interference 0it te c of q e
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When the LL interest ends his implied contract for quiet enjoyment ends with it and does not necessarily continue during the whole term e!pressed to be granted, regardless of whether or not the tenant was aware of the limited nature of the LL interest. The implied covenant allows the tenant to enjoy his lease against the lawful entry, eviction or interruption of any man, but not against tortious entries, evictions or interruptions. +ee for eg. in 9ickards v 3otian where the LL of a building let out as o%ices, is not liable under the covenant for damages caused by the malicious act of some person. ompare with 3avender v %etts where a LL in order to get rid of a tenant, removed the doors and windows was in breach of the implied covenant. The implied covenant applies to any act of the LL.
%reac of Covenant for Quiet ,njoyment/ It was stated in /anderson v +ayor of %er0ickupon ;*0eed that in every case it is a question of fact and it is stated that where the ordinary and lawful enjoyment of the demised land is su5stantially interfered with by the lessor or tose la0fully claiming under im , the covenant appears to be bro$en although neither the title to the land nor the possession of the land is a%ected/ The words ' do not mean noise@free environment, but enjoyment of possession. =onetheless if noise created by the LL is so e!cessive as to prevent the T*s enjoyment of possession, it could be a breach/ /ampson v .odson ; 5y teir servants>agents (0eter la0ful or unla0ful once tey acting under te 334s A?) = to la0ful acts of people deriving title from te 33 (eg oter *s of te 33) /o *e landlord is not responsi5le for / Unlawful acts of persons claiming title under the LL. Sanderson v Mayor o Ber!i"k#$pon %T!eed: # single LL rented three neighbouring farms to three tenants, one of the T*s complained of Aooding on the farm caused by drains running from the farms let to the other B T*s. The LL was held to be in breach of covenants in respect of one of the farms, where the drains were defective and Aooded despite the fact that the tenant was using them within the scope of his legal rights. The LL, however was not held liable for the Aooding caused by the drains from the B nd farm. The drains on this
farm were in good wor$ing order but were Aooding because the T was using them in e!cess of his legal rights. An act or disturbance by a 3 rd party. An act or disturbance by a person who has a superior title to the LL, for eg. By the head LL where the tenant is sub-lease. 4primary e%ect of a qualied covenant5 @ones v 3avington :>y an agreement, not under seal operating as an immediate demise, the C agreed to 0let1 to the 2 certain premises for the term of ( yrs. The C was a lessee of the premises, which by the terms of the lease to him, were subject to a restrictive covenant, of which the 2 had no notice, until restrained by inj obtained by the superior LL. In an action for b of q e ?eld/ That whether or not any contract for q e could be implied from the word Dlet*, the use of that word did not create an unrestricted contract for q e which would cover lawful interruption by a person claiming under title paramount, so the 2 was not entitled to recover. (2) It applies only to su5stantial interference 0it te *4s ordinary reasona5le enjoyment - the interference must be substantial. +ee Sanderson above &a' v &a'kisson/ In an action by a T against his LL for damages for breach of his implied covenant for q e)nuisance)trespass resulting from seepage of water from the rented premises. # judge dismissed the claim notwithstanding his nding that seepage too$ place. It was admitted that the LL removed galvaniEed sheets from the roof. When rain fell, eruption of water. uestion was whether the interference was substantial. The trial judge held that it was not. "n appeal ?'LC/ :5by depriving the central portion of the building of such protection against wind and weather as the two end portions a%orded was physical interference with the enjoyment of the tenancy. B5that the repeated interruption of rain and water on the premises which the # occupied by right as tenant constituted a physical disturbance of or interference with his tenancy causing damage su%icient to sustain the action for breach of the implied covenant for q e as well as the ground for nuisance. There is no breach in the ordinary case of personal discomfort constituted by mere nuisance or annoyance arising from noise, smell, invasion of privacy or abuse. Bro!ne v lo!er : Whether substantial interference has ta$en place is a question of fact depending on the individual circumstances of the case. #cts which cause inconvenience to Ts but which do not actually disturb the enjoyment of possession
will not be breaches. acts: LL, built an e!ternal staircase passed the T*s bedroom window which destroyed the T*s privacy. Jenkins v Ja"kson: # granted a lease to > of B rooms with a c of q e, then # let a room above the B rooms to for dancing and other entertainments. > brought an action against # and for an inj. To stop such use of the upper room, alleging that the dancing over his head, and behaviour of visitors on the stairs was a breach of the covenant and a nuisance. .eld: That the annoyance was no breach of the covenants. #lso, the annoyance from the dancing was a nuisance and damages were awarded. That the annoyance from the visitors on the stairs was not a nuisance for which # or was liable. erwich 7, 0 0quietly1 does not mean undisturbed by noise, when a man is quietly in possession, it has nothing whatever to do with noise, though the word quiet is frequently used in reference to noise. 0peaceably and quietly1 means without interference@ without interruption of possession. It may be called a covenant for title.
)!en v add/ LL erected sca%olding outside a shop which obstructed the shop*s entrance this was held to be substantial interference +ancester 9ly v Anderson/ # temporary disturbance 4in this case construction wor$s which had actually caused structural injury to the C*s house5 which does not interfere with the title)possession is not a breach. If a temp disturbance does amount to a breach but is unli$ely to be repeated the ct would not grant an inj though T can still get a remedy in damages It was originally thought that interference must be physical. Lavender v. Betts: LL entered premises & removed the windows & doors Markha' v. Paget: LL engaged in mining activities under the house that caused the basement to subside &a' v &a'kisson above "nce the act causes physical interference there is a breach regardless of whether the act was done of the premises/ Booth v. Tho'as: LL failed to repair a culvert on neighbouring land & as a result of the lac$ of repair water escaped from the culvert & physically damages the T*s property Sha! v. Stenton: Lower stratum of minerals had been demises, & the lessor wor$ed the upper stratum so as to cause the roof of the lower stratum to cave in & the mine was Aooded &o+inson v. Kil+ert: >y a heating apparatus o% premises was overheated so as to become unsuitable 9 the use contemplated when the lease was granted.
=ote however/ avis v. To!n Properties -nvest'ent orp Ltd: where the disturbance is not due to some direct interference with the proper but to some act done o% the property, there is no b of c unless it was either foreseen in fact, or ought to have be reasonable care been foreseen, that the interruption would Aow as a consequence of the act. =oise) disorderly conduct done on adjoining premises may not amounts to a nuisance) a breach of the fro '. 'ven if it does the LL will not be liable 9 simply failing to prevent it, but only if actual participation by him in its commission is shown, which by reason of a course of intimidation, see$s to annul the demise. =ote/ not all acts amounting to nuisance will constitute a breach of c of q e. Jaeger v. Mansions onsolidated Ltd: # lessor is not liable 9 an invasion of vermin when he has done nothing to attract them or to let them loose on the premises 2hysical interference must not however be equated with physical damage, but whether the acts physically disturb T*s enjoyment of the premises. Perera v. /andiyar: LL cut of T*s gas & electricity F this was considered physical interference though there was no physical damage. It has also been held that the interference must also be direct. )!en v add/ ?owever modern cases seem to suggest that they need not be actual physical interference in the premises. Thus if the interference is so substantial or intolerable so as to justify the T leaving, provided that that consequence was intended or provided it was reasonably foreseeable that the tenant would leave. Kenny v Preen: deliberate and persistent attempt by LL to drive out the T from possession of the demised premises by persecution and intimidation, including threats of physical eviction and removal of her belongings, was a breach of the covenant, even if there were no direct physical interference with the tenant*s possession and enjoyment. 4although in this case there was an element of such interference/ repeated $noc$ing on her door and shouting threats through it5 The acts done need only to interfere with the T*s freedom of action in e!ercising his rights as tenant/ M"all v 0v alesB 1"& 1 A33 ,9 $ at page 2'
Tapper v. Myrie J0 0: 6 was a T of the #. The # disconnected the electricity to get the 6 out. 6 paid GH rent per mth & in addition GH 9 electricity. 6 found this act to be a breach of the #*s c 9 qe. "n appeal # argued that agreement pertaining to the supply of electricity was separate from that which created the relationship of LL & T so its breach could not constitute a b of the c of qe. ?eld/ the agreement to supply electricity eas part & parcel of the tenancy agreement & the c of qe was implied by reason of the reltioship of LL & T, 6*+ decision upheld. The covenant does not enlarge what was previously granted, but gives an additional remedy if the lessee cannot get or is deprived of that which was previously professed to him. Te++ v. ave held that where the lessor built a building on the adjoining premises that bloc$ed the passage of air & caused the chimneys to smo$e was breach of the covenant. >ut 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 $eeping and maintaining the premises or part thereof, or any act 0illfully done or omitted to 5e done 5y te 33 in connection with it after the demise. - The LL is not liable for the defective wor$ 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 qualied or restricted or it may be unqualied or absolute. :. ualied 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 $eep the premises in proper repair. The lessors covenanted that, the lessees paying the rent when due and observing the other covenants on his part, should quietly enjoy the demised premises without
interruption. The rent being in arrears and the premises out of repair the lessors served notices on sub@tenants of the lessee requiring them not to pay to the lessee any rent then due or to become due, but to pay the same to the lessors, and threatening legal proceedings in default of compliance with notice. "ne sub@tenant of the lessee, in pursuance of the said notice paid his rent to the lessor*s agent. In an action by the lessee for b of c for q e. .eld/ 4:5 The action of the lessors in the issuing of the notice to the lessee*s sub@tenants was more than a mere idle threat and amounted to a breach of the c of q e. 4B5 The of q e was an independent covenant and the fulllment by the lessee of his covenants to pay rent and repair was not a condition precedent to his right to sue the lessors for breach of it. The words 0during the said term, means that the protection granted to the tenant endures throughout the term of grant and does not cease with the estate of the landlord as does the protection granted under the implied covenant. The question arises as to how many of the three aspects are relevant in the event of breach of the covenant in this form. Jnder the covenant(a) the tenant is entitled to be put into possession, (5) the T is entitled to have quiet possession but only in a limited or qualied way and the words which may qualify the covenant are 0Without any interruption by the landlord or any person li$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$side ining o. a mine for use as an Iron mine, subsequently he leased to the 2, an adjoining mine for the same purpose, the lease for the 2 containing a cov. Kor q e for the mine, 0without any interruption or eviction by the lessor, his heirs or assigns or any other person or persons claiming
interruption, or by any act the consequences of which either were foreseen or ought to be foreseen by the C*s at the time the covenant was entered into, was not an interruption within the meaning of the covenant and the C was not liable. Lord 'sher, 0a covenant for q e has always been founded in words so large as it might include)cover every possible interruption of benecial enjoyment. ?owever, it has been held that it does not bear this large meaning and it does not embrace the case of eviction by title paramount. It has been construed to mean that the covenantee shall have q e of the thing demised not interrupted by any act of the lessor, or any person authorised by him- to that it has hitherto been conned. Therefore, in an action upon this covenant the 2 does not prove his case by merely proving an interruption of his enjoyment, he must further prove, that it has been interrupted by an act of the C, the covenantor, or by the act of some person authorised by him. The e%ect of this covenant with regards title is that it e!cludes any covenant for title so that if the landlord never had any title he is not liable to a tenant who is evicted by the real owner. =ote that the position with title is di%erent with absolute and implied title. B. '!pressed #bsolute/ includes the qualifying words 0Without any interference by landlord etc.1 The words without any interruption by the landlord or by any person whatsoever ma$es it an absolute covenant for quiet enjoyment. Jnder this, the landlord gives an absolute assurance as to title.4i.e.5 he guarantees title in that he ma$es himself responsible for (1) his own acts of interruption not permitted by the lease($) the lawful acts of persons rightfully claiming by, through, or under him.(2) the lawful acts of persons claiming by title paramount. It should be observed that all three aspects of the quiet enjoyment will operate. If the covenant is against acts of a single identiable named person, it e!tends to both lawful and unlawful acts of that person 1lise Persa$d v. harles )gle 0 $yana: 2343 words in an agreement 0the lessee paying the rent shall peacefully hold and enjoy the demised* premises* creates a condition & not a covenant. ="T T"" +J6' #>"JT T?I+ 9emedies - #n action for breach is an action for >". +o T can recover damages ltd to losses Aowing naturally from the breach e.g. for inconvenience, damage to his property)9 replacement)repair, costs of ct proceedings & if the T was forced to leave , 9 removal cost.
Where L sought to drive T from the premises by harassment T may wasn*t to see$ 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 prot by the tortious act, or 9 trespass. The must however claim speacically 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 prots. - 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. -
