Although non-residential real estate leases provide for a
variety of obligations, which are often more onerous for the tenant
than the landlord, it is the very essence of the lease that the
landlord must provide the tenant with the peaceful enjoyment of the
leased premises. This means unimpeded possession that enables the
tenant to fully use the premises for the purposes for which they
were rented. The tenant is entitled to conduct its activities in
the premises with peace of mind and without fear of the risk of
accidents.
The obligation to provide peaceful enjoyment extends both to the
leased space, to the areas used jointly by the tenants of the
property, and to the appurtenances necessary for its use. It is a
continuous obligation that is binding on the landlord until the end
of the lease.
Peaceful enjoyment is a concept which is assessed, firstly,
according to the authorized use of the leased space, but also in
light of all the circumstances surrounding the lease and the
property. The nature of the tenant's activities, the main
reasons for the tenant's lease of this space in the building,
the location of the property in the city or chosen sector of the
city, the type of construction of the building and neighbouring
area, are some of the factors to be considered in assessing the
peacefulness of the occupancy and the use of the leased premises by
the tenant. This is because, for some tenants, the same event may
prevent or interfere with the normal exercise of their activities,
while it would have little impact on others. For example, one can
imagine the consequences of opening a bar in a building housing a
law firm as compared to opening a bar in proximity to a billiard
hall.
The criterion used for assessing the peaceful enjoyment afforded
to the tenant is the average person. Moreover, the landlord's
duty to provide peaceful enjoyment does not require it to provide
exceptional services in order to take a specific situation into
account.
Interference with peaceful enjoyment may be due either to the
conduct or omissions of the landlord and its employees, or to
disturbances from circumstances under the total or partial control
of the landlord, such as those caused by other tenants in the
building. Thus, the landlord may not transform the physical space
of the building with the effect of restricting access to the leased
space or preventing the free use of the amenities and services
available to the tenant without the risk of infringing on peaceful
enjoyment. It cannot turn a blind eye to a water leak, an invasion
of cockroaches, constant loud noise or a persistent toxic odour
without incurring its liability. Nor may it make excessive use of
its right to visit the premises for an inspection or to re-lease or
sell them without exposing itself to damages, an abatement of rent,
or even termination of the lease.
As important as it may be, the landlord's obligation to
provide peaceful enjoyment is sometimes limited by the consent of
the parties through the insertion of a clause in the lease
exonerating the landlord of any liability in this regard. The
effect of such a clause has been reviewed on several occasions and
recognized as valid by the courts, although they found it to be
inoperative in cases where the tenant was totally deprived of the
enjoyment of its space, or where the peaceful enjoyment was
disturbed by the deliberate acts of the landlord. And justifiably
so, since the peaceful enjoyment of the premises chosen by a tenant
to carry on its activities is the primary benefit sought by it and
for which it pays a price. It is a benefit which should not be
nullified. The use of such a clause requires both care and
advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
