Real Estate Terminology

1. The right of a purchaser, or lessee, not to have his proper use and enjoyment fettered or substantially interrupted by any act of the vendor, or lessor, or any lawful act of someone rightfully claiming under or in trust for the vendor, or lessor (Howell v Richards (1809) 11 East 633, 641–2, 103 Eng Rep 1150, 1154; Sanderson v Berwick–on–Tweed Corp’n (1884) 13 QBD 547 (CA); City of New York v. Mabie, 13 NY (3 Kern) 151, 156, 64 Am Dec 538 (1855); Trimble v. Seattle, 231 US 683, 34 S Ct 218, 58 L Ed 435 (1914); Rahman v. Federal Management Co., Inc., 23 Mass App Ct 701, 505 NE.2d 548, 551 (1987); Mayrand v 768565 Ontario Ltd (1989) 7 RPR (2d) 287, 295 (Ont. Can)). A landlord who covenants to give quiet enjoyment undertakes that during the tenancy he will not interfere in a substantial or serious manner with the tenant’s possession and enjoyment of the demised premises. The right of quiet enjoyment refers in the main to such matters as denial of a right of possession or reasonable enjoyment, rather than to noise or physical disturbance as implied by the phrase. On the other hand, such interference may arise even if there is no direct interference with the tenant’s physical possession or enjoyment (Kenny v Preen [1963] 1 QB 499, [1962] 3 All ER 814 (CA); Manzaro v. McCann, 401 Mass 880, 519 NE.2d 1337, 1341 (1988)). A landlord must not, for example, subject a tenant to persistent intimidation, threats of physical eviction, continually obstruct access to the premises, cut off or persistently interrupt the utility supply, or otherwise prevent a tenant from peacefully using the premises for the purpose for which they were let. A breach of the covenant for quiet enjoyment does not arise merely from a temporary inconvenience which does not interfere with the estate, title or possession of the demised property, as for example when the landlord has to carry out essential repairs or alterations (Phelps v City of London Corporation [1916] 2 Ch 255; Manchester, Sheffield and Lincolnshire Ry v Anderson [1958] 2 Ch 394; Stinson Lyons Gerlin & Bustamante v. Brickell Bldg., 747 F Supp 1470 (SD Fla 1990), aff’d 923 F.2d 810). A breach of a right of quiet enjoyment does not normally arise from an act of a stranger (unless the landlord has acquiesced in the interference or the interference arises from an act of person claiming by or under the landlord) (Williams v Gabriel [1906] 1 KB 155; Sampson v Hodson–Pressinger [1981] 3 All ER 710, 714, [1981] 261 EG 895 (CA); Standard Livestock Co. v. Pentz, 204 Cal 618, 269 P 645 (1928); Marchese v. Standard Realty & Development Co., 74 Cal App.3d 142, 141 Cal Rptr 371, 374 (1977)). Examples of a breach of the covenant of quiet enjoyment include severely impeding a tenant’s ability to conduct his business; impeding access to a leased property or impairing the safety of those entering the premises; removing doors and windows with a view to getting a tenant to leave the leased premises; causing physical distress to the tenant by cutting off the gas and electricity; allowing constant flooding from adjoining property; ringing the fire alarm in an apartment building for an entire day; or causing a property to subside by carrying out mining works, even though the mining rights are reserved to the lessor (Owen v Gadd [1956] 2 QB 99 (CA); Carner v. Shapiro, 106 So.2d 87 (Fla 1958); Benitez v. Restifo, 167 Misc.2d 967, 641 NYS.2d 523 (1996)). A covenant for quiet enjoyment is normally contained in any well drawn lease. However, there is an implied covenant for quiet enjoyment in every grant of a tenancy of land, unless (in rare cases) there is an express condition to the contrary or there is a statutory provision that may override such a provision (Markham v Paget [1908] 1 Ch 697; Standard Livestock Co. v. Pentz, 204 Cal 618, 269 P 645 (1928); Best v. Crown Drug Co., 54 F.2d 736 (8th Cir. Mo 1946); Dobbins v. Paul, 71 NC App 113, 321 SE.2d 537 (1984)). In the US, also called ‘peaceful enjoyment’ and the covenant is sometimes referred to as a ‘covenant for possession’. cf. derogation from grant, harassment. See also constructive eviction, covenant of title^(US), demise, eviction, ‘peaceably and quietly’, re–entry, usual covenant.

2.^(Eng)One of the covenants that by statutory implication a vendor undertakes to provide if he sells land as beneficial owner and for valuable consideration, i.e. he undertakes that "the subject matter shall remain to and be quietly entered upon … and enjoyed … without any lawful interruption or disturbance …" Law of Property Act 1925, s. 76, Second Schedule, Part I. See also covenant of quiet enjoyment.

Terms in bold are defined elsewhere in the hard copy of the Encyclopedia.