Virtually every lease contains a quiet enjoyment clause and
despite the name, it has little to do with decibel levels. Rather
it is a promise by a landlord to allow a tenant to use a space for
the purpose for which it was leased and to not substantially
interfere with that use. What amounts to substantial interference?
Erecting a brick wall outside the front door? Yes. Removing all of
the doors and windows? Yes. A premises with unpleasant odours?
Perhaps. Cockroaches? Maybe.
In Nanaimo, B.C. a clothing store tenant began noticing an
unpleasant odour not long after moving in. The smell got worse over
the course of several months and the tenant became concerned that
the odour would damage the inventory, not to mention discourage
customers from entering the store. The landlord consistently denied
the existence of a problem and general repairs did not resolve the
issue. Eventually, the tenant stopped paying rent and found an
alternate location. The landlord sued but lost. The court held that
the presence of "a strong and unpleasant odour" defeated
the purpose of leasing the space by discouraging customers and
ruining the products. This amounted to a "fundamental
breach" which entitled the tenant to repudiate the lease. A
fundamental breach occurs where one party is deprived of
essentially the whole benefit of the lease as a result of a breach
by the other party. There are no hard and fast rules as to what
qualifies – the facts of each situation have to be assessed
by a court to determine if the breach is sufficiently serious.
Where such a breach is established, the innocent party has the
right to treat the lease as at an end.
On the other side of the country, a Montreal optical store was
alarmed to discover a cockroach infestation shortly after moving
in. The landlord did multiple treatments to eradicate the problem
but to no avail. After nearly two years and no signs of
improvement, the tenant informed the landlord that the problem was
intolerable and sought to cancel the lease. In Quebec establishing
a breach of the covenant of quiet enjoyment or "peaceful
enjoyment", as it is referred to in the Quebec Civil Code, is
more formalized than showing substantial interference. In Quebec a
landlord is required to provide peaceful enjoyment of a premises to
its tenant for the term of the lease. Establishing a breach of this
obligation requires showing that the tenant notified the landlord
of the problem and that once notified, the landlord failed to
substantially perform its obligations under the Quebec Civil Code.
Where a landlord's action or inaction is sufficiently serious
to constitute serious prejudice in the eyes of a court, a tenant
may be entitled to cancel its lease.
As in BC, the Quebec court sided with the tenant. The landlord
knew the extent of the problem and failed to fully comply with the
exterminators' recommendation to clean the entire building, not
just the problem areas. This amounted to a failure by the landlord
to live up to its requirement under the Quebec Civil Code to
deliver the property in a good state of repair fit for the purpose
for which it was leased. In the court's view the infestation
amounted to prejudice so serious as to entitle the tenant to cancel
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.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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