Landlords Covenant for Quiet Enjoyment: More than Meets the...

Posted on: Thursday, February 13th, 2014

You may have heard the phrase ‘covenant for quiet enjoyment’ referring to a lease between a landlord & tenant. To most people’s surprise, this does not refer explicitly to noise. More specifically, this covenant or promise is in place to allow the tenant to use the premises in a way for which the premises was leased.  

This covenant can be either explicit or implied. In Ontario, this covenant is reflected in section 22 of the Residential Tenancies Act, which states as follows:

Landlord not to interfere with reasonable enjoyment

22.        A landlord shall not at any time during the tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

 Even though the above is not the same as the common law definition of a “covenant for quiet enjoyment” it is the closest thing that the laws in Ontario have reflecting the covenant or promise.

What then does this covenant guarantee? It will cover any action which results in the tenant not having the full use & range for which the lease was signed. In a residential lease, this will include things like living on the property uninterrupted as well being able to use any amenities that accompany the property such as a balcony or pool.

An example of a breach of this covenant was evidenced in a recent court case in British Columbia. The tenant started to notice a foul odour on the leased premises where her clothing store was. As time went on the smell got worse. When the tenant complained to the landlord, they denied that there was anything wrong with the property. Eventually the tenant stopped paying rent and found an alternate location for her business. The landlord sued the tenant and lost. The court held that the existence of a “strong and unpleasant odour” defeated the purpose of leasing the space for a retail location because it could possibly damage inventory and dissuade customers from coming into the store. To read the full decision of the British Columbia Supreme Court, please follow the link provided:

http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1160/2013bcsc1160.html?searchUrlHash=AAAAAQARU3RlYXJtYW4gdiBQb3dlcnMAAAAAAQ

 This promise however will not cover such things as noisy neighbours, anything which doesn’t fall under the direct control or power of the landlord (such as city workers working in or around the property) or a temporary or minor interference.

There are a few different remedies that a tenant may pursue if they feel as if there has been a breach of the landlords ‘covenant for quiet enjoyment’. The tenant can affirm the lease and seek an injunction to stop the intrusive behavior by the landlord or the landlord’s agent as well as seek damages for any lost enjoyment. A tenant can also treat the lease as terminated, thereby releasing them from any further obligations under the lease in addition to seeking damages for the landlord’s breach. To treat the lease as terminated will only be seen by the court as acceptable where it is proven that there is a fundamental breach of the lease agreement which is generally tough to establish. It would seem that case law dictates that damages are the most common remedy sought and awarded in these situations.

It is wise for both landlords & tenants to take note of any covenant for “quiet enjoyment” of the property when signing a lease. The term in the lease agreement will specify what the landlord may or may not do which might interfere with the tenant’s ability to use their property. If there is no covenant in the lease agreement, then one will have to look to case law to determine their rights regarding “quiet enjoyment”.

 

 The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

Shari D. Elliott

Elliott & Elliott

135 Bayfield Street, Suite 101A

Barrie, Ontario, L4M 3B3

Tel.: 705-797-2672

Fax: 705-797-8445

Email: shari@elliottlawyers.com

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