It is common for commercial leases in England & Wales to contain an express promise by the landlord that they will not interfere with the tenant's use and occupation of the premises and, even if the lease is silent, the tenant will enjoy an implied right of quiet enjoyment.
This does not mean that landlords will be prevented from exercising their rights, where a right is expressly granted by the lease so as to not conflict with the tenant's right to quietly enjoy the premises. For example, there may be scenarios where the landlord needs to withdraw services for a period of the works and if the lease permits it, the action will not breach the tenant's right.
Importantly, landlords should be alive to the many and varied scenarios which may give rise to a breach of the quiet enjoyment covenant, including:
- Erecting scaffolding which interferes with the premises or causes damage to the tenant's business
- Noisy or intrusive building works
- Unreasonable behaviour or practices by the landlord's contractors
- Erecting a gate which interferes with a tenant's access to the premises
- Flooding damage caused by the excessive use of a drain by another tenant of the landlord
- Withdrawing services which the landlord is obliged to provide under the lease
A breach, even if unintended, may simply be unavoidable where for example a landlord desires to exercise a right to develop its other parts of the building. In these circumstances, landlords should consider:
- Offering financial compensation to the tenant, such as a rent reduction or rent-free period.
- Where the lease has not yet been granted, providing prospective tenants with as much information as possible about any proposed works.
- Providing as much information to the tenant as possible about the works and discussing with them how disturbance will be minimised.
- Ensuring that any specific arrangements are implemented by contractors.
- Designing and erecting scaffolding in a manner that prevents obstruction.
- Discussing with the tenant how noise disturbance may be minimised.
Where a landlord is in breach, a tenant may sue for damages. A tenant's claim is likely to sour relations between the parties. Landlords should, therefore, engage early with tenants and well in advance of any proposed works, to ensure any problems or concerns can be remedied in good time.
If you have any concerns or questions about how to deal with tenants when performing works to your property or how these issues may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.
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Senior Solicitor
