Covenant for quiet enjoyment cannot be invoked to impose (on its own) a repairing obligation

The covenant for quiet enjoyment does not impose a positive obligation to repair (though breach of such an obligation could also amount to a breach of the covenant for quiet enjoyment).

In Duke of Westminster v Guild ([1985] Q.B. 688, CA (Eng)) T had the benefit of a drainage easement over mews owned by L. The relevant drain, which served T’s property alone, was blocked. The lease provided that L could repair the drain and charge the cost to T. Under the law of easements, T could enter the mews and do the work at its own cost. It took the latter course but then sought to set the cost off against the rent. The English Court of Appeal held that T had no right to do this. There was no implied covenant or duty of care that required L to repair the drain. In the absence of such a positive obligation, failure to repair did not amount to a breach of the covenant for quiet enjoyment.

Slade LJ said:

‘The express covenant for quiet enjoyment and implied covenant against derogation from grant cannot in our opinion be invoked so as to impose on [L] positive obligations to perform acts of repair which they would not otherwise be under any obligation to perform.’ (at 703)

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