covenants for quiet enjoyment - st john's chambers · covenants for quiet enjoyment ... 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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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


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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:


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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:


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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


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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


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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


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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.


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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


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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)


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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


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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.


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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


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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


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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


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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


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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


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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


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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

[email protected]

St John's Chambers

mailto:[email protected]

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