Omission and quiet enjoyment

In Booth v Thomas ([1926] Ch. 397) a landowner’s predecessors in title had enclosed a stream in a culvert. A lease had been granted of neighbouring land and a building was constructed on it. The current owner of the stream was also the landlord of the neighbouring land on which the building stood (but the stream was not part of the lease). The landowner failed to keep the culvert in good repair. As a result, the culvert broke after a heavy storm. The result was that the foundations of the nearby building were damaged and the building partially collapsed. It was held that this was a breach of the landlord’s covenant for quiet enjoyment even though the problem was caused by an omission. Independently of the covenant for quiet enjoyment, the landlord owed a duty to keep the culvert in good repair. The failure to perform that duty was also a breach of the covenant for quiet enjoyment.

‘It appears to me that the case is one in which the defendant is liable by reason of his omission to repair and keep in good repair the culvert, in consequence of which the stream was able to get at the premises of the plaintiff, and by that failure or omission the defendant has rendered himself responsible to the plaintiff for a breach of the covenant for quiet enjoyment.’ (Pollock M.R. at 404)

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