Summary - Although most landlords and tenants
will have heard of the concept of a tenant being entitled to quiet
enjoyment of leased premises, it is often the case that landlords
and tenants are not aware of the breadth of the quiet enjoyment
right of a tenant.
Most commercial, industrial and retail leases contain a
provision pursuant to which the tenant is granted a right of quiet
enjoyment of the premises subject to the tenant having complied
with its obligations under the lease.
The right to quiet enjoyment is not only a right to use premises
but also to enjoy the premises. Even if there is no express clause
granting the tenant the right to quiet enjoyment in the lease, it
is a right which has been implied into leases.
A recent decision of the Administrative Decisions Tribunal of
NSW in the retail lease context, provided further confirmation that
a right for quiet enjoyment can be relied on by a tenant in a
number of different scenarios. In this particular case,
construction works taking place close to the leased premises and
the failure of the landlord to repair a leaking roof were both
found to be breaches of the express obligation for quiet enjoyment
which existed in that lease.
This is of relevance for a number of reasons, one of which is
that leases often do not impose an express obligation on a landlord
to carry out repairs to the leased premises. In the absence of such
an express obligation, the landlord is not required to carry out
such repairs unless the tenant is able to rely on an express or
implied right in the lease to enforce such repairs. It is not
surprising that, for example, a leaking roof which causes rain
water to come through the leased premises ceiling, will interfere
with the enjoyment of the leased premises by the tenant. In the
absence of any express provision for repair of the roof by the
landlord, a tenant can seek to rely on its right to quiet enjoyment
in order to require the landlord to carry out the repairs and seek
damages for any losses the tenant suffers as a result of the
failure to repair.
It is for the benefit of both landlords and tenants to
appreciate what is envisaged by quiet enjoyment and to be aware of
what may be required in order to comply with the obligation.
Please contact us if you have any queries in relation to quiet
enjoyment or potential breaches of lease.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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