Covenants for quiet enjoyment - St John's Chambers · Covenants for quiet enjoyment ... with...
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N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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Covenants for quiet enjoyment Charlie Newington-Bridges, St John’s Chambers
Published on 14 March 2014
Introduction
1. A landlord and tenant relationship will always imply a covenant for quiet enjoyment
on the landlord during the period of tenancy. The covenant may be expressed in the
tenancy agreement, but if it is not it will be implied as a matter of law1. At the
outset of the tenancy, the covenant gives the tenant the right to be put into
possession of the whole of the demised premises2. It also gives the tenant the right
to quiet enjoyment of the demised premises once in possession.
Meaning of Quiet Enjoyment
2. The first question then in any analysis of the covenant for quiet enjoyment is what
quiet enjoyment actually means. The quiet in quiet enjoyment does not mean
undisturbed by noise. In fact, it has nothing whatsoever to do with noise; in this
context quiet means without interference or without interruption of possession3.
The legal meaning of quiet enjoyment was considered by the House of Lords in
1 Woodfall, Landlord & Tenant, Vol 1, 11.266
2 Miller v Encer Products Ltd [1956] Ch 304
3 Jenkins v Jackson (1888) 40 Ch D 71
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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Southwark London Borough Council v Mills [2001] 1 AC 1, where tenants of council
flats with ineffective sound insulation argued that the landlord council was in breach
of the covenant for quiet enjoyment in their tenancy agreements.
3. In Southwark, extensive analyses of the nature of the covenant were undertaken in
the speeches of Lord Hoffmann and Lord Millett, with both of which the remaining
members of the court (Lord Slynn of Hadley, Lord Steyn and Lord Clyde) agreed.
Lord Hoffmann said this at 10B:
"The covenant has a very long history. It has been expressed or implied in
conveyances and leases of English land for centuries. It comes from a time
when, in a conveyancing context, the words "quiet enjoyment" had a
technical meaning different from what they would today signify to a non-
lawyer who was unacquainted with their history. So in Jenkins v Jackson
(1888) 40 Ch D 71, 74 Kekewich J felt obliged to point out that the word
"quietly" in the covenant:
"does not mean undisturbed by noise. When a man is quietly in
possession it has nothing whatever to do with noise … "Peaceably and
quietly" means without interference – without interruption of the
possession".
Likewise in Kenny v Preen [1963] 1 QB 499, 511 Pearson LJ explained that:
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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"the word "enjoy" used in this connection is a translation of the Latin
word "fruor" and refers to the exercise and use of the right and having
the full benefit of it, rather than to deriving pleasure from it."
The covenant for quiet enjoyment is therefore a covenant that the tenant's
lawful possession of the land will not be substantially interfered with by the
acts of the lessor or those lawfully claiming under him. For present purposes,
two points about the covenant should be noticed. First, there must be a
substantial interference with the tenant's possession. This means his ability to
use it in an ordinary lawful way. The covenant cannot be elevated into a
warranty that the land is fit to be used for some special purposes: see
Dennett v Atherton (1872) LR 7 QB 316. On the other hand, it is a question
of fact and degree whether the tenant's ordinary use of the premises has
been substantially interfered with. In Sanderson v Berwick- upon-Tweed
Corpn (1884) 13 QBD 547 the flooding of a substantial area of agricultural
land by water discharged from neighbouring land occupied by another
tenant of the same landlord was held to be a breach the covenant."
4. To similar effect, Lord Millett said at 22F:
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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"The covenant for quiet enjoyment is one of the covenants of title formally
found in a conveyance of land, and the only such covenant found in a lease
of land. It has long been understood that the word "quiet" in such a
covenant does not refer to the absence of noise. It means without
interference. The covenant for quiet enjoyment was originally regarded as a
covenant to secure title or possession. It warranted freedom from
disturbance by adverse claimants to the property … But its scope was
extended to cover any substantial interference with the ordinary and lawful
enjoyment of the land, although neither the title to the land nor possession
of the land was affected: Sanderson v Berwick-upon-Tweed Corpn (1884) 13
QBD 547, 551."
5. We can therefore say that the covenant for quiet enjoyment by the lessor in a
relationship of landlord and tenant is broken if the landlord or someone acting
under him, does anything that substantially interfered with the tenant’s ordinary
and lawful enjoyment of the demised premises4. The next issue then becomes what
a substantial interference is.
Breach of Covenant for Quiet Enjoyment
6. There is much case law as to what a ‘substantial interference’ actually is and when
the substantial interference needs to take place for a breach to occur. The question
4 Southwark LBC v Mills at 23
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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as to what will constitute a breach of the covenant and a substantial interference
will to some extent be fact dependant, but a series of cases have given guidance as
to what will and will not be viewed by the court as a breach of the covenant.
Southwark LBC v Mills
7. The claims of the tenants in Southwark were rejected by the House because the
covenant is prospective in its operation and therefore did not extend to interference
with the use and enjoyment of the premises by the tenants which was occasioned
by the defective condition of the property before the grant of the tenancy.
8. In Southwark where the landlord had let inadequately sound-proofed premises to
the tenant, the ordinary everyday noise generated by the neighbours of the
complainants caused them intolerable and continuous disturbance. Despite that
disturbance it was held that as the defect was inherent in the landlord’s building at
the date the lease was granted it could not give rise to liability for breach of the
covenant of quiet enjoyment. It can be said then that an act done before the date of
the covenant for quiet enjoyment does not constitute a breach of covenant. The
general rule is then that the covenant relates to future acts and not past acts5.
5 See also Celsteel v Alton House Management Ltd (No.2) [1987] 1 WLR 291, Booth v Thomas [1926] Ch 397,
406
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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9. In his judgment Lord Hoffman held that physical interference is not necessary for a
breach of the covenant to be established. There is no reason as to why the covenant
should be confined to a case of direct and physical injury to the land. Specifically, he
held that:
“For my part, however, I do not see why, in principle, regular excessive noise
cannot constitute a substantial interference with the ordinary enjoyment of
the premises. The distinction between physical interference with the demised
premises and mere interference with the comfort of persons using the
demised premises recalls a similar distinction made by Lord Westbury LC for
the purposes of the law of nuisance in St Helen's Smelting Co v Tipping
(1865) 11 HL Cas 642, 11 ER 1483. That distinction was no doubt justifiable
in that context on pragmatic grounds, but I see no reason why it should be
introduced into the construction of the covenant for quiet enjoyment. I
would not be willing to say that Kenny's case was wrongly decided. The fact
that the appellants complain of noise is therefore not in itself a reason why
their actions should fail.”
10. Somewhat confusing therefore while quiet enjoyment does not means free from
excessive noise, excessive noise may constitute a breach of the covenant for quiet
enjoyment if the noise is substantial in its interference. The covenant is broken then
if the landlord or someone claiming under him does anything that substantially
interfered with the tenant’s title to or possession of the demised premises or with
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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his ordinary and lawful enjoyment of them. The interference does not need to be
physical or direct.
Kenny v Preen
11. In the Court of Appeal case of Kenny v Preen [1963] 1 Q.B. 499 at 513 in which a
campaign of intimidation had been conducted by the landlord with the aim of
removing the tenant from the property it was held by Pearson LJ, giving the leading
judgment, that the persistent conduct of the landlord in trying to evict his tenant by
means of threats and violence was a breach of the covenant for quiet enjoyment.
However, the case has been viewed as authority for the proposition that disturbance
of enjoyment which is merely temporary and which does not interfere with the title
or possession of the tenant is generally not a breach of the covenant6. In Kenny,
Pearson LJ reasoned that:
“I would decide on two grounds in favour of the tenant's contention that
there was, in this case, a breach of the covenant for quiet enjoyment. First,
there was a deliberate and persistent attempt by the landlord to drive the
tenant out of her possession of the premises by persecution and intimidation,
and intimidation included threats of physical eviction of the tenant and
removal of her belongings. In my view that course of conduct by the landlord
6 See also Manchester, Sheffield and Lincolnshire Rly Co v Anderson [1898] 2 Ch 394 at 401, CA and Phelps v
City of London Corpn [1916] 2 Ch 255.
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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seriously interfered with the tenant's proper freedom of action in exercising
her right of possession, and tended to deprive her of the full benefit of it, and
was an invasion of her rights as tenant to remain in possession undisturbed,
and so would in itself constitute a breach of covenant, even if there were no
direct physical interference with the tenant's possession and enjoyment. No
case of this kind has ever been considered by the courts before, and I do not
think the dicta in the previous cases should be read as excluding a case of this
kind where a landlord seeks, by a course of intimidation, to "annul his own
deed," to contradict his own demise, by ousting the tenant from the
possession which the landlord has conferred upon her. Secondly, if direct
physical interference is a necessary element in the breach of covenant that
element can be found in this case to a substantial extent, as I have already
stated.” (emphasis added)
12. The judgment in Kenny v Preen therefore makes clear that a landlord does not
commit a breach of an implied covenant for quiet enjoyment merely by asserting
that the tenant's title and right to the possession of premises has been validly
determined, even if the landlord believes the assertion to be true, and not even if he
asserts that ‘frequently, emphatically and rudely’. A breach will also not have
occurred if a landlord threatens proceedings for possession and damages. However,
a course of conduct involving threats of physical eviction and removal of the
tenant's belongings, in a deliberate effort to drive the tenant out, together with a
substantial element of direct physical interference (such as repeated knocking on the
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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door and shouting threats), does constitute a breach of the covenant and can do so
even if there is no direct physical interference with the tenant's possession and
enjoyment.
Shebelle Enterprises Ltd v The Hampstead Garden Suburb Trust Ltd
13. Shebelle7 was about a proposal to build a substantial basement extension to a
property in Hampstead Garden Suburb to house a swimming pool. The property
was originally held under a long leasehold title which was enfranchised under the
Leasehold Reform Act 1967, and as such there was a scheme of management in
place made and approved by the High Court in accordance with the provisions of
the 1967 Act, which regulated the rights of owners in various respects. The stated
aim of the scheme was ‘ensuring the maintenance and preservation of the character
and amenities of the Hampstead Garden Suburb’. Under the scheme the owners of
the property had to apply to the trustees of the scheme for permission to build their
basement.
14. The Claimant in the case was a company owned and controlled by Sir Victor Blank,
the industrialist. He applied for an injunction based, and based only, on the
7 [2013] EWHC 948 (Ch) (22 April 2013)
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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contention that the grant of permission by the Trust to the Defendant to carry out
the proposed works to their basement would potentially breach the covenant for
quiet enjoyment in the Claimant’s lease. It was accepted that no breach had
occurred at the time of the application, but a quia timet interim injunction was
sought on the ground that the Claimant could show at least a good arguable case
that the feared breach of covenant would in fact happen.
15. The Claimant claimed that his case was on all fours with Sanderson v Berwick upon
Tweed Corpn8, which was said to be authority for the proposition that if a common
landlord A demises land to B and also demises neighbouring land to C, A will be
liable to B for breach of the covenant if it authorises C to act in a way which will
interfere with B's quiet enjoyment.
16. The Court of Appeal held that under the Leasehold Reform Act 1967 the covenant
for quiet enjoyment could not prevent the proper exercise of the power of the Trust
in the public interest, even though the public in the case was a local one. The
decision was then it was defence to a claim for breach of the covenant for quiet
enjoyment that the Trust had statutory authority to act in the way that it did. The
public interest was engaged on the facts of the case and in those circumstances the
covenant for quiet enjoyment could not be relied upon so as to prevent or hinder
the proper exercise of public duties in the public interest by the landlord.
8 (1884) 13 QBD 547
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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H v S 2013 (unreported) – Yeovil County Court
17. This unreported case raised some interesting points of law and, possibly even more
interestingly, revealed the workings of a witches’ coven. The facts of the case were
that a local entrepreneur ‘H’ owned several commercial premises on a street in a
Somerset town. In 2009 he let those premises to be run as a shop by a couple ‘S’
who it transpired were part of a witches coven. A dispute arose about the payment
of service charges between H and S as well as a number of other tenants of the
commercial premises owned by H on the same street. An agent entered the shop let
to S in 2010 to discuss the service charge issue. A row ensued in which both parties
were aggressive. H’s agent probably swore at S. It is also likely that S swore at H’s
agent. It was alleged that H’s agent threatened violence, but he was effectively
chased by S and other tenants off the street. S left the premises immediately
without serving notice. H failed to let the premises for a year. H brought a claim for
damages for the lost rent and S counterclaimed for breach of the covenant for quiet
enjoyment claiming damages for lost profit from the shop.
18. There was extensive CCTV evidence in the case, which although without sound gave
a flavour of the depth of feeling involved. H’s agent clearly shouted as did S and the
other tenants on the street. No physical contact was made between the parties,
although there was some squaring up to one other.
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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19. In the judgment in relation to the counterclaim for damages for breach of the
covenant for quite enjoyment it was held that for breach of the covenant for quiet
enjoyment to have occurred there must have been substantial interference with the
tenant’s ordinary and lawful enjoyment of the demised premises. The question was
whether there had been a substantial interference. There is authority that makes
plain that for interference to be substantial it must be sustained and not temporary
in character. A disturbance of quiet enjoyment which is merely temporary and which
does not interfere with the title or possession of the tenant is generally not a breach
of the covenant: Manchester, Sheffield and Lincolnshire Rly Co v Anderson and
Phelps v City of London Corpn9. On the facts even if there was interference it
occurred only once. It was therefore held that if there was interference it was only
temporary in nature and could not in law constitute a breach of the covenant for
quiet enjoyment.
20. It was further held that Kenny v Preen establishes that in a case involving
persecution and intimidation where the intimidation included threats of physical
eviction of the tenant the disturbance needed to be enduring – a one-off instance of
disturbance of quiet enjoyment would not suffice as a breach of quiet enjoyment.
The judgment of Pearson LJ refers to the fact that the disturbance in Kenny v Preen
was ‘persistent’, that it involved a ‘course of conduct’ and a ‘course of intimidation’.
On the facts of this case there was just one instance in which it was alleged that H
or his agent ‘interfered’ with S. It was held that as there was no persistence to the
9 [1898] 2 Ch 394 at 401, CA and [1916] 2 Ch 255
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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disturbance or course of conduct the alleged disturbance in the case was not
enough to constitute a breach of the covenant for quiet enjoyment.
Remedies
The General Rules
21. Generally, an award of damages for breach of the implied covenant for quiet
enjoyment is assessed according to normal contractual principles. The measure of
damages for breach of covenant for quiet enjoyment is the amount of damages
sustained, but limited to the matters that are, or may be supposed to be, within the
contemplation of the parties when the contract of tenancy was made10.
22. As a claim for damages for breach of the covenant for quiet enjoyment is a claim in
contract, a court will not award the tenant either aggravated damages for his
distress and inconvenience or exemplary damages to punish the landlord: Branchett
v Beaney11. However, it is observed by the editors of Woodfall that the acts which
constitute a breach of the covenant for quiet enjoyment may also constitute a tort
(e.g. nuisance or trespass) and, if so, exemplary damages may be awarded.
23. In 19th century authority it was held that a where a tenant is forced to vacate the
demised premises and to set up elsewhere, he is entitled to the cost of removing his 10
Woodfall, Landlord and Tenant, Vol 1, 11.302 11
[1992] 3 All ER 910 at 917
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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business to and fitting out his new premises12. However, the damages claimed were
reduced on the basis that that tenant had spent more than was strictly necessary in
fitting out the new premises. It was held in the same case that a tenant may be
entitled to recover for loss of profits. However, a claim for loss of profits must be
properly pleaded and proved13.
Damages for Eviction
24. Where a tenant is evicted from the demised premises and/or has suffered aggressive
conduct on the part of the landlord amounting to a constructive eviction, damages
for breach of the covenant will include the value of the term lost, the costs of
defending an action for possession, and any sum recovered against the tenant for
mesne profits. A constructive eviction takes place where the landlord makes the
tenant’s position so intolerable that he is compelled to vacate the premises. In a case
such as that aggravated damages may be awarded where the tenant’s dignity and
pride is injured not on the basis that they are punitive, but on the basis that they are
compensatory to the tenant14.
Exemplary Damages
12
Grosvenor Hotel Co. Hamilton [1894] 2 QB 836 13
Woodfall, Landlord & Tenant Vol 1 , 11.302 per Lawson v Hartley Brown (1995) 71 P & CR 242, CA. 14
Woodfall, Landlord and Tenant, Vol 1, 11.304
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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25. As suggested above, in some cases a wrongful eviction will also constitute a tort as
well as a breach of the covenant for quiet enjoyment. The tort may be trespass,
nuisance, assault and battery. Again as above, in a claim in tort exemplary damages
can be awarded. They are likely to be awarded where a landlord is particularly
cynical in his disregard for the rights of the tenant. This may manifest itself in the
landlord calculating that there is more money to be made by evicting the tenant
wrongfully than there would be even if a claim was brought against him and
damages awarded. On this or similar grounds exemplary damages have been
awarded where:
a) A landlord turned a residential tenant’s belonging out into the street ad
locked him out15;
b) A landlord carried out noisy and disruptive work to encourage the tenants
to leave16;
c) The landlord, in order to relet at a higher rent, threw the tenant and his
bedding out into the garden, assaulted him and threatened further
violence17; and
d) Where the landlord dug up part of the tenant’s garden with a bulldozer
in order to construct an access way18.
Statutory Remedies
15
Drane v Evangelou [1978] 1 WLR 455 16
Guppy’s (Bridport) v Brookling (1983) HLR 1 17
McMillan v Singh (1984) 17 HLR 120 18
Branchett v Beaney, ante
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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26. The tenant also has a statutory remedy in tort in respect of certain acts under s27
Housing Act 1988. The provision states:
“27 Damages for unlawful eviction
(1) This section applies if, at any time after 9th June 1988, a landlord
(in this section referred to as “the landlord in default”) or any person
acting on behalf of the landlord in default unlawfully deprives the
residential occupier of any premises of his occupation of the whole or
part of the premises.
(2) This section also applies if, at any time after 9th June 1988, a
landlord (in this section referred to as “the landlord in default”) or any
person acting on behalf of the landlord in default—
(a) attempts unlawfully to deprive the residential occupier of any
premises of his occupation of the whole or part of the premises, or
(b) knowing or having reasonable cause to believe that the conduct is
likely to cause the residential occupier of any premises—
(i) to give up his occupation of the premises or any part thereof,
or
(ii) to refrain from exercising any right or pursuing any remedy
in respect of the premises or any part thereof, does acts likely to
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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interfere with the peace or comfort of the residential occupier or
members of his household, or persistently withdraws or withholds
services reasonably required for the occupation of the premises as
a residence, and, as a result, the residential occupier gives up his
occupation of the premises as a residence.”
27. In such cases the landlord is liable to pay damages to the former residential occupier
for the loss of his right to occupy the premises in question as his residence. The
service of an invalid notice to quit does not give rise to liability for damages under
s27, but, interestingly in light of H v S above, an abusive conversation may do19.
28. However, it is a defence to s27 for the defendant to prove that he believed that the
residential occupier had ceased to reside in the premises at the time that he was
prevented from occupying them or where liability arose as result of the withdrawal
of services, that the landlord has a reasonable grounds for withdrawing the services
in question: s27(8) Housing Act 1988.
29. The basis of the assessment of damages referred to in s27(3) Housing Act 1988 is
the difference in value, determined as at the time immediately before the residential
occupier ceased to occupy the premises in question as his residence, between the
value of the interest of the landlord in default determined on the assumption that
the residential occupier continues to have the same right to occupy the premises as
19
Abbott v Bayley (1999) 32 HLR 72, CA
N.B. While every effort is made to ensure the accuracy of the information given in these notes, they are not intended to be relied upon as legal advice and no liability will be accepted in relation to such reliance.
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before that time and the value of that interest determined on the assumption that
the residential occupier has ceased to have that right: 28(1) Housing Act 1988.
Charlie Newington-Bridges 12th March 2014
St John's Chambers