QUIET ENJOYMENT IS a right held by all tenants to enjoy their property undisturbed.
Most lease agreements come with a specific clause granting tenants quiet enjoyment, however, courts have readily implied the right into leases not containing such a provision.
In assessing whether a breach has occurred, the court will look to the activities of the tenant and whether they have been rendered practicably impossible to use the premises.
For example, in Telstra Corporation v Sicard Pty Ltd, excessive noise from construction during business hours where a call centre operated resulted in calls unable to be made.
In Spathis v Hanave Investment Co Pty Ltd, the tenant complained of a breach of quiet enjoyment at their premises, a cake and sandwich shop.
Development of the adjoining building caused lack of visibility of the shop to passers by and its dim light inside, the unpleasant view of hoardings, timber and concrete supports, made it unfit for continuing to use the premises for its purpose.
As such, the tenant’s quiet enjoyment was breached.
Interestingly the judge found that ‘some occasions’ of jack hammering or having the water supply cut off for a short amount of time did not.
Issues can arise when there is a clause in a lease that is inconsistent with a tenant’s right to quiet enjoyment. In a situation of inconsistency, the quiet enjoyment clause may be narrowed, preventing the tenant from taking action against the landlord.
It is therefore important to consider at the negotiation stage whether any clause regarding quiet enjoyment or obligations to provide insurance, repairs or alterations to the premises is present and if it nominates a particular party.
A landlord is responsible for taking steps within its control to prevent or stop disruption to the tenant’s trading.
Tenants seeking to make a claim against a landlord may have two options available to them:
- Seek an interlocutory (and then final) injunction preventing activities from continuing; and/or
- Seek damages for compensation for loss resulting from the breach.
For a tenant to successfully make a claim, a landlord must have consented to any act that a tenant argues is in breach of their right to quiet enjoyment.
Bottom Line: A tenant bears the onus of proving a breach, and of proving the quantum of damages to which it is entitled in consequence. There is also a requirement for the tenant to give the landlord written notice of loss or damage as soon as practicable after it is suffered. However, failure to comply does not necessarily affect right to compensation.
Disclaimer: If you think a similar situation may apply to you, then you should contact us for detailed legal advice relating to the particular facts and circumstances of your property or lease agreement. This article is not intended to provide such detailed and specific advice. And, you should not act on the basis of any matter contained in this article without first obtaining more comprehensive professional advice.