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.
