Quiet enjoyment: elements of the covenant: it is prospective

The covenant for quiet enjoyment is a covenant that the tenant’s lawful possession of the premises will not be substantially interfered with by the acts of the lessor or those claiming under him. It is prospective: it only relates to things done after the lease was granted. The interference need not be direct or physical (noise can give rise to a breach).

In Southwark LBC v Tanner ([2001] 1 AC 1, HL) the House of Lords confirmed the English Court of Appeal decision in Southwark LBC v Mills. T was the tenant in a block of flats owned by the Council. Because of inadequate sound insulation, the tenants could hear any noise made in other flats. This made life very unpleasant and T brought an action against the Council in nuisance and for breach of an express covenant for quiet enjoyment. The claims failed. There was no breach of the covenant for quiet enjoyment because the essential problem was a lack of sound insulation. But the covenant cannot impose a new positive obligation. The problem pre-dated the lease and the covenant is prospective. The landlords were making use of the remaining flats for the purpose that must have been in T’s contemplation at the time of the lease (as residential flats).

The claim in nuisance failed. There was no suggestion that the other tenants were committing a nuisance. In that case neither could the landlords be said to be authorising those claiming under them to commit a nuisance.

Lord Hoffman said:

‘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.” (at 10).

For there to be a breach of the covenant, there must be substantial interference with the tenant’s possession, her ability to use the property in an ordinary lawful way. The covenant is not a warranty that the land is fit to be used for some special purpose (at 10). The covenant is prospective; the action complained of must occur after the grant (at 11). The tenant takes the property subject to the uses of the retained parts which the parties must have contemplated (at 11).

Lord Millett pointed out that the covenant had originally been concerned with the tenant’s title or possession but had later been extended to cover substantial interference with the ordinary and lawful enjoyment of the land  (at 22). Interference need not be direct or physical and noise could give rise to a breach (at 22 – 23). The covenant extends to rights appurtenant to the demised premises such as a right to light (at 24).

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