It is a well-established principle that building works carried
out by a landlord pursuant to its covenant to repair must be
balanced with a tenant's right to quiet enjoyment, it is
therefore not surprising that the High Court recently found in
Timothy Taylor Ltd v Mayfair House Corporation & Another
 EWHC 1075 (Ch) that this principle extends to
development works carried out around an existing tenant. What is
more surprising is that the Court ordered a 20% rent reduction by
way of damages after finding that the landlord had acted
unreasonably in exercising its right to carry out development
In 2007, the tenant was granted a 20 year lease of the basement
and ground floor premises in a five storey in Mayfair at a rent of
over GBP 500,000, from which it operated a high class art gallery.
Under the terms of the lease, the landlord had an express right to
carry out development works to the building and erect scaffolding
for that purpose.
In 2013, the landlord started works to rebuild the building from
the first floor up. Prior to the commencement of the work, the
landlord had discussed with the tenant the proposed design for the
scaffolding to be erected. This showed that the scaffolding would
be constructed with towers at ground floor level so that it would
not be intrusive and the gallery could still be seen from the
street. In fact the landlord used a totally different design with
the scaffolding enwrapping the gallery into the building rendering
it practically invisible and looking as though it was closed. The
hoist to take up material was placed virtually right outside the
gallery's door. In addition to this the tenant complained about
the high level of noise, arguing that it disrupted its
The tenant claimed that the landlord was in breach of its
covenant for quiet enjoyment and sought damages for past breaches
and injunctions in relation to future works.
The court found that the issue was not whether the works
amounted to an actionable nuisance but whether the landlord had
acted reasonably in exercising its right to build. When considering
this the Court had regard to the following factors:
Whether there were reasonable steps that the landlord could
have taken to minimise the disturbance to the tenant: the Court
found that the landlord overlooked the tenant's interests when
it came to the scaffolding design but also on the issue of noise by
not discussing with the tenant means of mitigating the impact of
noise on the use of the gallery;
Whether the landlord had engaged with the tenant about the
proposed works: the Court found that this should include carefully
explaining to the tenant the proposed works, including any plans
known at the commencement of the lease, and giving the tenant a
real indication as to the duration of the works;
The nature of the premises: the fact that the claim related to
a high class gallery where the tenant paid a very substantial rent
meant that the landlord should have had particular regard to
Whether the landlord had offered the tenant any compensation
for the disturbance: the landlord's point blank refusal in this
respect was found to raise the bar of reasonableness;
Whether the works are carried out pursuant to the
landlord's repairing obligation or for the landlord's sole
profit, as was the case here.
Having found that the landlord had acted unreasonably and was
therefore in breach of the tenant's right to quiet enjoyment,
the Court found that an injunction was disproportionate and that
instead the tenant should be awarded a 20% rent discount for the
whole period of the works, even though the tenant had not suffered
any loss of profit as a result of the works.
This case is a useful reminder of the importance for a landlord
to engage with their tenants at an early stage when planning works
(whether for repair or development) around existing tenants and
throughout the duration of those works. This includes liaising with
them regarding scaffolding options and the timetabling of noisy
works insofar as possible giving tenants the opportunity to raise
any concerns. This proactive approach will not only reduce the risk
of any dispute but also the tenants being awarded damages or an
injunction, in particular if the landlord has offered compensation
for any disturbance caused by its works.
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