Class Notes:

Covenant for Quiet Enjoyment

Traditionally, this covenant was not a covenant in the acoustic sense of the word quiet,
but imposed an obligation on the landlord to ensure that the tenant would have peaceful
possession of the premises, thus it was described as a covenant to secure title and
possession, that is to say, to protect the tenants estate.
The landlord under this covenant is responsible for: a.
acts done by him whether the acts are done on or off the premises and
regardless of whether the acts are lawful or unlawful
b.
acts done by the landlords servants or agents acting under the landlords
authority [whether lawful or unlawful] ?
c.
lawful acts of persons claiming title under the landlord for example under
other tenants of property owned by the landlord
The implied covenant for quiet enjoyment is not an absolute covenant and therefore, it
does not protect the tenant from someone with a superior title otherwise called title
paramount.
Thus, if a landlord turns out to have a defective title, the tenant will not be able to bring
proceedings against the person with a superior title to the landlord.
Jones v. Lavington [1903] 1 KB 253.
- Defendant (tenant) sublet the premises to the plaintiff (sub-tenant).
- By an agreement, not under seal, the defendant agreed to "let" to the plaintiff
the premises for the term of three years.
- The lease between the defendant tenant and the superior landlord was subject
to a restrictive covenant as to carrying on any business thereon.
- The plaintiff wasnt aware of this and carried on a business there until
restrained by an injunction obtained by the superior landlord.
- In an action by P for breach of contract for quiet enjoyment:-- Held, that, whether or not any contract for quiet enjoyment could be implied
from the word "let," the use of that word did not create an unrestricted
covenant for quiet enjoyment which covers lawful interruption by a person
claiming under title paramount.
- The plaintiff was not entitled to recover.
Application of the Covenant
At one time, the rule was that a tenant had to show that there was a substantial
interference with his ordinary enjoyment of the premises; this is a question of fact.
The classic illustration of the application of the covenant is the case of:

Lavender v. Betts [1942] 2 All ER 72

- where the landlord removed the windows and doors.
- Held the acts of the defendant were a breach of the covenant for quiet
enjoyment which was an implied term of the statutory tenancy and the
plaintiff was entitled to punitive damages.
Further, the tenant also had to show some physical interference to constitute a breach of
covenant.
Browne v. Flower
- the court held that there was only a loss of privacy, but no physical
interference.
- Staircase was erected beside the window of the bedroom of the plaintiffs flat.
- Persons using the staircase could see directly into the plaintiffs bedroom.
- Held that the invasion of privacy and comfort of the plaintiff was not a breach
of the LLs covenant for quiet enjoyment as there was no physical
interference.
However in Owen v Gadd and others [1956] 2 All ER 28, the court of Appeal held that
the erection of scaffolding in close proximity to the shop entrance and window of the
demised premises constituted a breach of the covenant. This is because the scaffoldings
impeded the access of the public to the shop window.
Today there is a movement away from the traditional view that there must be physical
interference before a tenant can establish a breach of the covenant.
Kenny v Preen [1962] 3 All ER 814
- the Court of Appeal held that there was a breach of covenant for quiet
enjoyment although there was no physical interference.
- Facts: LL after serving notice to quit, started threatening the tenant by letters
and in person that she would evict her and her belongings from the premises.
- She was shouting at her and banging on the door.
- Held: breach of covenant for Q.E.; there was an element of physical
interference by repeatedly knocking on the door and shouting threats which
were backed up by threatening letters.
Sampson v. Hodgson-Pressinger [1981] 3 All ER 710.
- P was resident in flat 7 as a tenant; D1 became resident in flat 9 above.
- Because of the faulty construction of D1s roof terrace, P could hear
everything going on up there footsteps and conversations.
- The noise was excessive.
- P brought action against D1 and the landlord, D2.
- Held: D2 liable for breach of covenant for quiet enjoyment.
Since these decisions, a number of cases had to consider whether acoustic disturbance
can amount to a breach of the covenant.

Southwark LBC v Mills

- The appellants were local authority tenants occupying flats which had no
sound insulation.
- They could hear all the activities of their neighbours in adjoining flats: babies
crying, television, cooking, cleaning, love-making and quarrels.
- HL held that there was no breach of covenant for Q.E. tenant takes a
demised premises in the physical condition in which he finds it and subject to
the uses of others in adjoining premises.
- Their complaint was solely about a structural defect which existed when they
took their tenancies.
Breach of the Covenant of Quiet Enjoyment
See the articles. Quiet enjoyment cases are essential. See the Southwark cases [2001] 1
AC 1, or [1999] 4 All ER 449.
The covenant for quiet enjoyment cannot be avoided. If the lease agreement does not
include the covenant, the covenant will be implied by common law and statute.
The Express Covenant for Quiet Enjoyment
The express covenant for quiet enjoyment or title in any form will displace the implied
covenant, which is always a qualified covenant.
An express covenant is usually qualified however, and will have the same effect as the
implied covenant, but will have the added advantage from the tenants point of view of
enduring throughout the term granted.
As long as it is limited to protecting the tenant from lawful eviction or interruption by the
landlord or anyone claiming by, from, or under him, it will be construed as qualified and
will not protect the tenant from eviction by someone with a title paramount.
However, an express covenant for quiet enjoyment may be drafted so as to include even a
claim by title paramount, or a person with a superior title.
If the tenant is in a position to negotiate for an express covenant for quiet enjoyment and
included a person with a superior title, then the landlord would be bound by that
agreement and would therefore have to compensate the tenant accordingly.
It may be difficult to get a landlord to agree to such an agreement. The express covenant
where it exists must be read carefully, however, it is usually nothing more than a
repetition of the common law position or statute.
Remedies For Breach of Covenant

A tenant may either seek an award for damages for breach of contract, or they might seek
an injunction.
There are a number of West Indian cases where we have seen excessive tactics on the part
of the landlord.
See the case of Douglas v. Bowen (1974) 22 WIR 333. See also the case of Valentine v.
Rampersaad (1970) 17 WIR 12(Trinidad) and Drane v. Evangelou [1978] 2 All ER
437(British)1 where the tenant after seeking a declaration of rent returned home to find
his things outside and the doors locked to him and several persons in occupation.
Damages will be measured by the loss resulting from the breach. In addition, the court
can grant damages for mental distress.
The wrongful conduct of the landlord, may also amount to a tort in which case
aggravated or exemplary damages may be awarded.
Valentine v. Rampersaad (1970) 17 WIR 12
- LL told T that he intended to demolish the premises, and advised T to seek
alternative accomodation.
- LL then gave T notice to quit.
- Before T moved out LLs workmen entered the premises without LLs
knowledge or consent and fell a tree that destroyed the latrine. {this was never
properly replaced}.
- Work on the premises continued over the months including the dumping of
gravel and the removal of roof over the unoccupied room in the house.
- Held: Exemplary damages were properly awarded as LLs actions were
oppressive.
Douglas v. Bowen (1974) 22 WIR 333
- T was a monthly tenant.
- Premises were used for her dwelling and as a night club.
- Terrace was constructed which housed a piano and the terrace served as a bar.
- T failed to pay rent a month because she was away but she paid it when she
got back.
- LL gave T notice to quit by October 16.
- On October 17 LL caused a bulldozer to demolish the terrace. The piano was
found on its side and other effects of the establishment were destroyed.
- Electricity and water were cut off and LL caused Ts furniture to be removed
and damaged.
- Held: LLs actions also amounted to a cause of action in tort for loss of use
and enjoyment of the house and trespass to goods.
- Also T was awarded with general and special damages and also exemplary
damages.
1

[1978] 1 WLR 455

Drane v. Evangelou [1978] 2 All ER 4372.

Tenant successfully sought review of rent.
Came home one day and found that he was locked out of house and his
possessions were thrown outside.
Got injunction preventing landlord from denying him access to maisonette.
On Appeal held: Exemplary damages could be awarded for the unlawful eviction
of a tenant by harassment.

Injunction
The grant of an injunction is a discretionary remedy, and will only be granted where
damages would not be an adequate remedy.
So a tenant might obtain an injunction to prevent a landlord from breaching the covenant
for quiet enjoyment where damages would not compensate for the inconvenience.
Generally however, it will not be easy to get an injunction in landlord and tenant matters
because most breaches of covenant can be compensated for by an award of damages.
Drane v Evangelou
-

The Court did grant an injunction based on what the judge said was the
monstrous behaviour of the landlord.

Additional Notes:
Implied Covenant
The covenant for quiet enjoyment is implied in any landlord and tenant relationship,
whether the lease is written or oral.
Markham v Paget (1908)
- Held that this covenant is implied in any landlord and tenant relationship and
that this is the only view consistent with common sense.
- Facts: The landlord by working minerals under the demised premises caused
the land to subside. Held: Breach of covenant for Q.E.
Interference with tenants enjoyment of property
Covenant protects the tenant from his enjoyment of the property being disturbed by the
landlord or any person who derives title from him.

[1978] 1 WLR 455

It was originally regarded as a covenant to secure title or possession but now it extends to

Any substantial or physical interference with the tenants ordinary and lawful enjoyment
of the property (Southwark LBC v Mills).
Ram v Ramkisson
-

LL wished to recover possession of the property.

He instituted proceedings against T.
While proceedings still pending he removed sheets of zinc from the roof.
As a result when it rained water seeped through to the floor of the rooms
causing T loss and physical damage.
Held: Breach of covenant for quiet enjoyment

Disconnecting Utilities
Perera v Vandiyar
- The landlord will be in breach of the covenant for QE if he disconnects the
main services of the demised premises.
Tapper v Myrie
- LL disconnected the electricity and told T, I cut off your light because I want
you to come out
- Held: the supply of electricity was a benefit which was incidental on the rental
of the premises.
- Thus cutting it off was breach of covenant for quiet enjoyment.
Blocking Passageway
Saul and Saul v Small
- The blocking up of the passageway of T by the LL, and the barring of the
kitchen door was more than a mere interference with the comfort of the
plaintiffs.
- It amounted to a physical interference with the enjoyment of the demised
premises.
Construction / Effecting Repairs
Carson:
-

Where interference or disturbance is caused by workmen conducting repairs

on the building it will only be seen as a breach of covenant for QE is such
interference goes on for an excessive amount of time and is therefore seen to
be unreasonable.
Should be noted that when conducting those repairs the landlord is doing what
he is covenanted to do maintain the building.

Thus, the chances of successfully complaining about this are slim, especially
if the interference is only temporary and hence not unreasonable. E.g. two
weeks.

However, if the disturbance by the repair/construction is substantial it will be a breach.

Owen v Gadd
- Scaffoldings erected by LLs workmen were held to be a breach of covenant
for QE as they blocked the publics access to Ts shop.
- Romer LJ said:
- the fact that the external repair works were reasonably necessary, that they
were efficiently done and with dispatch could not affect the trial courts
decision that the construction work substantially interfered with the enjoyment
of the leasehold premises.
Temporary Interference wont be a breach
Manchester Sheffield v Anderson
- LL, in the process of construction works, caused structural injury to Ts house.
- It rendered access to Ts premises less convenient and blocked up half the
public roadway.
- Held: Inconvenience suffered by T was for between 2 and 4 days; this was too
short and temporary to constitute a breach of covenant for QE.
No liability for inherent defect / existing condition
There is no breach of covenant if the premises has an inherent defect of which T knew of
when taking possession.
Southwark LBC v Mills
- Held that Ts complaint was ultimately one about the apartments not being
sound-proof.
- This was a structural condition which existed at the time of the grant.
No liability for mere invasion of privacy
Browne v Flower
- See above
ACTS of THIRD PARTIES
LL is liable for the rightful acts of third parties who derive title from him.
Acts are rightful if the landlord has given proper authorisation or consent for those acts
to be carried out.

Sanderson v Berwick Tweed Corporation

- One of LLs other tenant was granted the rights to use a drain across from Ts
field.
- Water discharged by the other tenant leaked through the drain and flooded Ts
land.
- Held: Breach of covenant for QE.
Unauthorised Acts of third parties will not make LL liable.
Baxter v Camden Borough Council
- House of Lords defined improper use as a use not authorised by the LL.
- The tenant is at liberty to proceed against the third party for those wrongful
acts.
Mantania v National Provincial
- T was a tenant in a building.
- He had rented the 2nd and 3rd floors.
- The first floor was rented by D1 who sought to carry out substantial
alterations to the building.
- Such alterations could not be carried out except with the consent of the headlessor and all the sub-lessees.
- Thus Ts consent was needed as T was a sub-lessee.
- However, Ts consent was never sought. Yet alterations began.
- The alterations caused nuisance to T by dust and noise.
- Held: Since consent for the alterations were dependent on T also giving
consent, no proper authorisation for the alterations were really granted.
- Thus, there was no breach of covenant for QE since acts of D1 were
unauthorized.
Additional Cases
Anderson v Oppenheimer
- LL not liable for damaged caused by water which leaked from a broken pipe
because he had done all he could to properly maintain the pipe.
- Thus no breach of covenant for QE
Branchette v Beaney
Held: Since the object of a covenant for quiet enjoyment in a lease or tenancy agreement
cannot be described as being to provide peace of mind or freedom from distress, damages
for injured feelings and mental distress are not recoverable for breach of a covenant for
quiet enjoyment
Davis and Town Properties

LL constructed a building on the property adjoining the demised premises.

The building was of such a height that it caused Ts chimney to smoke and
this materially affected Ts enjoyment of one of the rooms in his house.
Held: No breach of covenant for QE since as at the date of the demise, LL had
no interest in the adjoining premises.

Jarvis v Swan Tours

T will only get damages 4 mental distress where the contract is to provide pleasure, peace
of mind or freedom from molestation:
Miller v Emcer Products Ltd.
Persaud v Ogle

CD Notes:

Covenants of Quiet enjoyment

Implied covenant:
- Where a lease or tenancy is granted whether by deed, in writing, or
orally, there is always implied a LL covenant for the quiet
enjoyment of the demised premises.
- The covenant is to be implied from the mere relation of LL & T
(Mark v. Paget, applied Tapper v. Myrie). It is implied both at
CL and under statute.
- This implied covenant protects the T from interference with his
right to exclusive possession . It can provide T with a COA in
situations ranging from harassment by the LL to failure to keep
property in good repair.
- The covenant will not be implied where there is an express C. If it
is set out, it excludes the implied covenant in so far as they cover
the same ground. It is important because the nature and legal
effect of each covenant may be different. At CL, in the absence of
an express clause for QE , A qualified undertaking of the covenant
is implied from the mere existence of the relationship of LL and T.
- This covenant consists of 3 obligations.
(1) A qualified undertaking as to title. the LL undertakes that he
has sufficient interest in the property to be able to put the T into
possession. This is not an absolute undertaking as to title by which a
LL undertakes that he/she has sufficient interest to be able to grant
the whole of the Ts term. So if I rent a house from Kenneth and then
sublet a room to Kelley; a week later my tenancy expires & Kenneth
then seeks to evict Kelley, Kelley has no remedy against me. On the
day I rented the premises to Kelley, I had a sufficient interest to put
her into possession & that is all that is required by qualified
undertaking as to title.
Stranks v. St. John and Baynes v Lloyd 1895 2 QB 610
especially at 617: held that assuming that in the absence of the
word demise, either of such covenants that is, for title and for q
e could be implied in the lease, the duration of the covenant was
limited by that of the lessors own estate and that consequently the
P could not recover."
(2) An undertaking to put the T in possession (clearly a LL
cannot claim to grant a person a tenancy & then refuse to put him
into possession, to do so would be to deprive the T of exclusive
possession) on the day the tenancy commences per Romer LJ: Miler v
Emcer.
Wallis v Hands (p 84):The P in 1887, took a lease of certain minerals
which, to his knowledge had already been included in a lease to other
parties, which had been granted in 1884. The P never entered into
possession under the lease, although it purported to be a lease in
possession. In 1888, the lessees of the 1884 lease assigned the term

demised. The P brought an action against, the assigns in order to est

the priority of his own title over them and against his lessor, on the
implied covenant for quiet enjoyment for his lease contained no such
express covenant. Held: A person having only an interesse termini
cannot maintain an action on a covenant for quiet enjoyment, neither
can he maintain an action for trespass or for damages.
Chitty J, the essence of a breach of covenant for quiet enjoyment
of a lease appears to me to be a disturbance of the lessees
possession. In Sanderson v Beswick .There has been no
disturbance of possession in this case. The P has merely an
interesse termini under the lease of 1887, he has not only never
been in possession of the property comprised in that lease but
there is no evidence of his ever having ever attempting to take
possession. N.B. Acc to H&R the doc of interesse termini has
been abolished.
(3) A qualified undertaking to allow the T quiet enjoyment of
the premises. Having entered into the relationship of LL & T it is
implied that the LL has undertaken not to do acts that would tend to
deprive T of the full benefit of the right to possession.
*Kenny v Preen*: LL sent threatening letters, banged on the door
and shouted abuse at the T. It was held to be a breach of the c of q e.
The LL was in breach of his c of q e and an inj. had been rightly
granted because a) on the facts there had been a course of conduct
on the LLs part amounting to direct physical interference with
the Ts enjoyment of the premises demised.
b) Even if there
had been no physical interference with the Ts possession and
enjoyment of the demised premises, the LL conduct had
seriously interfered with the tenants freedom of action in
exercising her right of possession, had tended to deprive her of
the full benefit of this right, and was an invasion of her right to
remain in possession undisturbed, and so in itself constituted a breach
of the covenant.
-

A LL does not commit a breach of an implied covenant for quiet

enjoyment merely by asserting the Ts title and right to the pos. of
premises has been validly determined, if he believes the assertion
to be true, not even if he so asserts frequently, emphatically and
rudely, nor does he commit such a breach for threatening
proceedings to the court for pos. and damages; but a course of
conduct involving threats of physical eviction and removal of
the Ts belongings in a deliberate effort to drive the T out,
together
with
a
substantial
element
of
physical
interference(such as repeated knocking and shouting
threats), does constitute a breach, and can do so even if
there is no direct physical interference with the c of q e.

When the LL interest ends his implied contract for quiet enjoyment
ends with it and does not necessarily continue during the whole
term expressed to be granted, regardless of whether or not the
tenant was aware of the limited nature of the LL interest.
The implied covenant allows the tenant to enjoy his lease against
the lawful entry, eviction or interruption of any man, but not
against tortious entries, evictions or interruptions. See for eg. in
Rickards v. Lothian where the LL of a building let out as offices,
is not liable under the covenant for damages caused by the
malicious act of some person. Compare with Lavender v. Betts
where a LL in order to get rid of a tenant, removed the doors and
windows was in breach of the implied covenant. The implied
covenant applies to any act of the LL.

Breach of Covenant for Quiet Enjoyment:

It was stated in Sanderson v Mayor of Berwick-upon Tweed that
in every case it is a question of fact and it is stated that where the
ordinary and lawful enjoyment of the demised land is substantially
interfered with by the lessor or those lawfully claiming under
him, the covenant appears to be broken although neither the title to
the land nor the possession of the land is affected:
The words QE do not mean noise-free environment, but enjoyment of
possession. Nonetheless if noise created by the LL is so excessive as
to prevent the Ts enjoyment of possession, it could be a breach:
Sampson v. Hodson Pressinger
There are 3 important limitations on the covenant of quiet
enjoyment
(1) It applies only to Ts & not licensees
(2) It applies only to acts done by LL themselves/by their
servants/agents (whether lawful or unlawful once they acting
under the LLs AU) & to lawful acts of people deriving title from
the LL (e.g. other Ts of the LL).
So The landlord is not
responsible for:
Unlawful acts of persons claiming title under the LL.
Sanderson v Mayor of Berwick-upon Tweed: A single LL rented
three neighbouring farms to three tenants, one of the Ts complained
of flooding on the farm caused by drains running from the farms let to
the other 2 Ts. The LL was held to be in breach of covenants in
respect of one of the farms, where the drains were defective and
flooded despite the fact that the tenant was using them within the
scope of his legal rights. The LL, however was not held liable for the
flooding caused by the drains from the 2 nd farm. The drains on this

farm were in good working order but were flooding because the T was
using them in excess of his legal rights.
An act or disturbance by a 3 rd party.
An act or disturbance by a person who has a superior title to the
LL, for eg. By the head LL where the tenant is sub-lease.
(primary effect of a qualified covenant)
Jones v. Lavington :By an agreement, not under seal operating as
an immediate demise, the D agreed to let to the P certain
premises for the term of 3 yrs. The D was a lessee of the premises,
which by the terms of the lease to him, were subject to a
restrictive covenant, of which the P had no notice, until restrained
by inj obtained by the superior LL. In an action for b of q e Held:
That whether or not any contract for q e could be implied from the
word let, the use of that word did not create an unrestricted
contract for q e which would cover lawful interruption by a person
claiming under title paramount, so the P was not entitled to
recover.
(3) It applies only to substantial interference with the Ts
ordinary reasonable enjoyment
- the interference must be substantial. See Sanderson above
Ram v Ramkisson: In an action by a T against his LL for damages for
breach of his implied covenant for q e/nuisance/trespass resulting
from seepage of water from the rented premises. A judge dismissed
the claim notwithstanding his finding that seepage took place. It was
admitted that the LL removed galvanized sheets from the roof. When
rain fell, eruption of water. Question was whether the interference
was substantial. The trial judge held that it was not.
On appeal HELD:
1)by depriving the central portion of the building of such
protection against wind and weather as the two end portions
afforded was physical interference with the enjoyment of the
tenancy.
2)that the repeated interruption of rain and water on the premises
which the A occupied by right as tenant constituted a physical
disturbance of or interference with his tenancy causing damage
sufficient to sustain the action for breach of the implied covenant for q
e as well as the ground for nuisance.
There is no breach in the ordinary case of personal discomfort
constituted by mere nuisance or annoyance arising from noise, smell,
invasion of privacy or abuse. Browne v Flower: Whether substantial
interference has taken place is a question of fact depending on the
individual circumstances of the case. Acts which cause inconvenience
to Ts but which do not actually disturb the enjoyment of possession

will not be breaches. Facts: LL, built an external staircase passed the
Ts bedroom window which destroyed the Ts privacy.
Jenkins v Jackson: A granted a lease to B of 2 rooms with a c of q e,
then A let a room above the 2 rooms to C for dancing and other
entertainments. B brought an action against A and C for an inj. To
stop such use of the upper room, alleging that the dancing over his
head, and behaviour of visitors on the stairs was a breach of the
covenant and a nuisance. Held: That the annoyance was no breach of
the covenants. Also, the annoyance from the dancing was a nuisance
and damages were awarded. That the annoyance from the visitors on
the stairs was not a nuisance for which A or C was liable. Kerwich J,
quietly does not mean undisturbed by noise, when a man is quietly
in possession, it has nothing whatever to do with noise, though the
word quiet is frequently used in reference to noise. peaceably and
quietly means without interference- without interruption of
possession. It may be called a covenant for title.
Owen v Gadd: LL erected scaffolding outside a shop which
obstructed the shops entrance this was held to be substantial
interference
Manchester Rly. v Anderson: A temporary disturbance (in this case
construction works which had actually caused structural injury to the
Ds house) which does not interfere with the title/possession is not a
breach. If a temp disturbance does amount to a breach but is unlikely
to be repeated the ct would not grant an inj though T can still get a
remedy in damages
It was originally thought that interference must be physical.
Lavender v. Betts: LL entered premises & removed the windows
& doors
Markham v. Paget: LL engaged in mining activities under the
house that caused the basement to subside
Ram v Ramkisson above
Once the act causes physical interference there is a breach regardless
of whether the act was done of the premises:
Booth v. Thomas: LL failed to repair a culvert on neighbouring land
& as a result of the lack of repair water escaped from the culvert &
physically damages the Ts property
Shaw v. Stenton: Lower stratum of minerals had been demises, &
the lessor worked the upper stratum so as to cause the roof of the
lower stratum to cave in & the mine was flooded
Robinson v. Kilbert: By a heating apparatus off premises was
overheated so as to become unsuitable 4 the use contemplated when
the lease was granted.

Note however: Davis v. Town Properties Investment Corp Ltd:

where the disturbance is not due to some direct interference with the
proper but to some act done off the property, there is no b of c unless
it was either foreseen in fact, or ought to have be reasonable care
been foreseen, that the interruption would flow as a consequence of
the act.
Noise/ disorderly conduct
done on adjoining premises may not
amounts to a nuisance/ a breach of the C fro QE. Even if it does the LL
will not be liable 4 simply failing to prevent it, but only if actual
participation by him in its commission is shown, which by reason of a
course of intimidation, seeks to annul the demise.
Note: not all acts amounting to nuisance will constitute a breach of c
of q e.
Jaeger v. Mansions Consolidated Ltd: A lessor is not liable 4 an
invasion of vermin when he has done nothing to attract them or to let
them loose on the premises
Physical interference must not however be equated with physical
damage, but whether the acts physically disturb Ts enjoyment of the
premises.
Perera v. Vandiyar: LL cut of Ts gas & electricity this was
considered physical interference though there was no physical
damage.
It has also been held that the interference must also be direct. Owen
v Gadd:
However modern cases seem to suggest that they need not be actual
physical interference in the premises. Thus if the interference is so
substantial or intolerable so as to justify the T leaving, provided that
that consequence was intended or provided it was reasonably
foreseeable that the tenant would leave.
Kenny v Preen: deliberate and persistent attempt by LL to drive out
the T from possession of the demised premises by persecution and
intimidation, including threats of physical eviction and removal of her
belongings, was a breach of the covenant, even if there were no direct
physical interference with the tenants possession and enjoyment.
(although in this case there was an element of such interference:
repeated knocking on her door and shouting threats through it)
The acts done need only to interfere with the Ts freedom of action in
exercising his rights as tenant: McCall v Avalesz 1976 1 ALL ER
727 at page 730.

Tapper v. Myrie JA CA: R was a T of the A. The A disconnected the

electricity to get the R out. R paid $X rent per mth & in addition $X 4
electricity. RM found this act to be a breach of the As c 4 qe. On
appeal A argued that agreement pertaining to the supply of electricity
was separate from that which created the relationship of LL & T so its
breach could not constitute a b of the c of qe. Held: the agreement to
supply electricity eas part & parcel of the tenancy agreement & the c
of qe was implied by reason of the reltioship of LL & T, RMS decision
upheld.
The covenant does not enlarge what was previously granted, but
gives an additional remedy if the lessee cannot get or is deprived of
that which was previously professed to him.
Tebb v. Cave held that where the lessor built a building on the
adjoining premises that blocked the passage of air & caused the
chimneys to smoke was breach of the covenant. But this decision was
disapproved in Davis (above) which held that the covenant does no
confer any right to light so as to prevent a lessor from building on
adjoining premises. So where the T has not acquired a right to
light/access to air he cannot interference with either as a b of co of qe
- Covenant does not prevent the ordinary user of adjoining premises
unless this is detrimental to the purpose 4 which the premises
were let.
- It was also held that there was a breach of the covenant where the
lessor built flats near the house of the lesse, that they obstructed
the passage of air to the lessees chimneys and drove smoke down
them with the result that some rooms were rendered uninhabitable
when the wind was in the north-east or south-west and at other
times could only be used with great discomfort. The correctness of
the decision is doubtful. The LL is liable for acts as well as
omissions only if there had been negligence on the part of the LL
in keeping and maintaining the premises or part thereof, or any act
willfully done or omitted to be done by the LL in connection
with it after the demise.
- The LL is not liable for the defective work of competent persons
contracted to repair the premises or part thereof.
The covenant for q.e. runs with the land and is therefore binding
on the assignees of the reversion and available by the assignees of
the term.
- A covenant for q.e. does not oblige the lessor to rebuild or repair,
in case the buildings are destroyed or injured by fire, tempest or
otherwise
- The Act/omission which caused the breach must be subsequent to
the granting of the lease, though if it is an act/omission of a person
claiming under the lessor, the title/AU under which he claims to do
the act may have been given/created b4 the lease
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Where the lessor acquires land after the lease he is not restricted
by the covenants in the use of this land
The covenant for q.e. will co-exist with the covenant not to
derogate from grant. The two covenants are complimentary and to
some extent overlapping. The true distinction would be that the
obligation not to derogate from the grant is concerned with user of
the retained part which makes the demised premises less fit for the
purpose for which they were let whereas the covenant for q. e. is
concerned with the enjoyment of the premises. This is a fine
distinction, but it serves to indicate that breaches of the latter
covenant consisting of threats or other intolerable nuisance are not
within the former obligation. Whereas the erection of buildings
which obstructed the passage of air to the drying sheds of a lessee
of land expressly demised for the purpose of a timber merchants
business, was held to be a derogation from the lessors grant. It is
doubtful whether it would constitute a breach of the covenant for
q.e.

Express Covenant for Quiet Enjoyment: This may be qualified or

restricted or it may be unqualified or absolute.
1. Qualified Covenant: This is a more frequent expressed covenant
entered into by landlord:
The lessor covenants with the lessee that the lessee paying the
rent reserved and performing and observing the covenants
hereinbefore on his part to be performed and observed shall and
may peaceably and quietly possess and enjoy the said demised
premises for the term hereby granted without any lawful
interruption or disturbance from or by the lessor or any person
lawfully claiming by from or under him.
Note the words claiming under or in trust for him, or the words
claiming by, through, or under him. Note the following:- The covenant
commences with the words that the tenant paying the rent etc.
Reading these words one would get the impression that if the tenant
defaults in payment of rent or in breach of some other covenant, then
the landlord will not be held liable for the breach of q e. But this is not
so.
Edge v Boileau: the payment of rent or performance of the tenants
covenants is not a condition precedent to the observance of quiet
enjoyment.By a lease it was provided that the lessors might reenter
the premises if rent should be in arrears or the lessee should not keep
the premises in proper repair. The lessors covenanted that, the
lessees paying the rent when due and observing the other covenants
on his part, should quietly enjoy the demised premises without

interruption. The rent being in arrears and the premises out of repair
the lessors served notices on sub-tenants of the lessee requiring them
not to pay to the lessee any rent then due or to become due, but to
pay the same to the lessors, and threatening legal proceedings in
default of compliance with notice. One sub-tenant of the lessee, in
pursuance of the said notice paid his rent to the lessors agent. In an
action by the lessee for b of c for q e.
Held: (1) The action of the lessors in the issuing of the notice to
the lessees sub-tenants was more than a mere idle threat and
amounted to a breach of the c of q e. (2) The C of q e was an
independent covenant and the fulfillment by the lessee of his
covenants to pay rent and repair was not a condition precedent to
his right to sue the lessors for breach of it.
The words during the said term, means that the protection granted
to the tenant endures throughout the term of grant and does not
cease with the estate of the landlord as does the protection granted
under the implied covenant.
The question arises as to how many of the three aspects are relevant
in the event of breach of the covenant in this form. Under the
covenant(a) the tenant is entitled to be put into possession, (b) the T
is entitled to have quiet possession but only in a limited or qualified
way and the words which may qualify the covenant are Without any
interruption by the landlord or any person likely claiming under or in
trust for him, so that the tenant is protected.(c) against all acts of
interruption of the landlord himself. The LL will not be liable for
(i) an act of interruption which is permitted by the lease, for example ,
to view the state of repairs and
(ii) Civil protection against acts of interruption by persons lawfully
claiming by, through, or under the landlord, for e.g. , acts of another T,
the LL is only liable for the lawful acts of such persons.
(iii) acts of persons with Title paramount.
Harrison v Muncaster at page 684: The D leased to the
Parkside Mining Co. a mine for use as an Iron mine, subsequently
he leased to the P, an adjoining mine for the same purpose, the
lease for the P containing a cov. For q e for the mine, without any
interruption or eviction by the lessor, his heirs or assigns or any
other person or persons claimingunder him. The Parkside Co.
while properly working their mine struck a feeder with the result
that a large body of underground water, the existence of which
was unsuspected, flooded their mine and seeped into the Ps mine
also causing considerable damage. Ps brought an action for
damages for breach of covenant for q e.
Held: That the interruption of the working of the Ps mine by the
eruption of water not having been caused by an direct act of

interruption, or by any act the consequences of which either were

foreseen or ought to be foreseen by the Ds at the time the
covenant was entered into, was not an interruption within the
meaning of the covenant and the D was not liable.
Lord Esher, a covenant for q e has always been founded in words
so large as it might include/cover every possible interruption of
beneficial enjoyment. However, it has been held that it does not
bear this large meaning and it does not embrace the case of
eviction by title paramount. It has been construed to mean that
the covenantee shall have q e of the thing demised not interrupted
by any act of the lessor, or any person authorised by him; to that it
has hitherto been confined. Therefore, in an action upon this
covenant the P does not prove his case by merely proving an
interruption of his enjoyment, he must further prove, that it has
been interrupted by an act of the D, the covenantor, or by the act
of some person authorised by him.
The effect of this covenant with regards title is that it excludes any
covenant for title so that if the landlord never had any title he is
not liable to a tenant who is evicted by the real owner. Note that
the position with title is different with absolute and implied title.
2. Expressed Absolute: includes the qualifying words Without any
interference by landlord etc. The words without any interruption by
the landlord or by any person whatsoever makes it an absolute
covenant for quiet enjoyment. Under this, the landlord gives an
absolute assurance as to title.(i.e.) he guarantees title in that he
makes himself responsible for (1) his own acts of interruption not
permitted by the lease.(2) the lawful acts of persons rightfully
claiming by, through, or under him.(3) the lawful acts of persons
claiming by title paramount. It should be observed that all three
aspects of the quiet enjoyment will operate. If the covenant is against
acts of a single identifiable named person, it extends to both lawful
and unlawful acts of that person
Elise Persaud v. Charles Ogle CA Guyana: 1979 words in an
agreement the lessee paying the rent shall peacefully hold and enjoy
the demised premises creates a condition & not a covenant. NOT
TOO SURE ABOUT THIS
Remedies
- An action for breach is an action for
damages ltd to losses flowing naturally
inconvenience, damage to his property/4
of ct proceedings & if the T was forced to

BOC. So T can recover

from the breach e.g. for
replacement/repair, costs
leave , 4 removal cost.

Where L sought to drive T from the premises by harassment T may

wasnt to seek aggravated damages 4 metal distress/ exemplary
damages as a punitive measure may be available. Note harassment
may also constitute a criminal offence.
Valentine v. Rampersad CA TT: R purchased house occupied by V.
After the purchase V offered to pay rent to R but R refused as he
informed her that he intended to demolish the accommodations. V
sent the rent by post anyway. R terminated the tenancy by notice. R
then dumped loads of gravel on the premises & removed galvanized
sheets from unoccupied rooms. R however did not obtain an order 4
possession till some time later. The trial jusge found that aggravation
should be take into a/c in assessing compensatory damages but
declined exemplary damages. CA held: that there was a clear case of
harassment & ruthless disregard to the Ts rights. The Rs conduct
was excessive & warrant punishment b exemplary damages.
- T will only get damages 4 mental distress where the contract is to
provide pleasure, peace of mind or freedom from molestation:
Jarvis v. Swan Tours. The CA in Branchett v. Beaney said obiter
that the c 4 qe does not fall within this category, so a T pursing a
claim 4 breach of c of qe will not be able to recover 4 metal
distress, but must pursue a claim in trespass/nuisance
Note however: Brinkman Douglas v. Majorie Bowen: CA JA: LL
bulldozed the property, even though he knew the notice to quite
served on the T was invalid. T awarded compensatory damages,
exemplary damages 4 the most outrageous trespass & disregard of
rights & calculated misuse of power. The amount was upheld by the
CA who noted that included mental distress by reason of the As
conduct in evicting her.
- LLs act of breach may also involve a tort (which gets u more $).
Exemplary damages may be awarded where the LL has calculated
that he may make a profit by the tortious act, or 4 trespass. The C
must however claim speacifically 4 e.g. 4 damages 4 trespass.
Drane v Evangelou: award of punitive or exemplary damages
made in an action involving breach of quiet enjoyment, not 4 the
breach for trespass(tort).
POINT: CLAIM FOR THESE THINGS IN TORT
- Where there has been no actual eviction, the damages are only
sustained at the commencement of the action. But where the
tenant has been ejected, damages for breach of the covenant will
include the value of the term lost, the costs of defending an action
of ejectment and any sum recovered against the tenant for mesne
profits.
- The court may also grant an injunction. This is a discretionary
remedy and would only be granted where damages would be
inadequate. Most breaches of this covenant can be compensated
for by an award of damages.
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