When renting a property, it is usual for a landlord to covenant with a tenant that he will grant “quiet enjoyment” of the property for the duration of the lease or tenancy agreement.

The legal meaning of this phrase goes far beyond its literal interpretation and does not necessarily have anything to do with noise, or the lack of it.

In broad terms, the phrase describes a tenant’s right to enjoy possession of the property without interruption or interference by his landlord during the period of his tenancy.

The tenant always has this right, which may either be written into the lease, or implied (by statute or the common law) and which automatically arises from the mere relationship of landlord and tenant.

It is often difficult to define what action will place a landlord in breach of his duty to give “quiet enjoyment” and this may explain why the courts have considered the issue on many occasions.

There are obvious examples of what constitutes a breach of duty, such as physical interference by the landlord himself (e.g. by changing the locks or removing the tenant’s possessions).

Physical interference is not, however, essential to proving a breach. Some less obvious examples have included:

where access to the tenant’s door was obstructed by the landlord’s scaffolding;

where the tenant’s occupation became intolerable due to noise, dust and dirt resulting from the landlord’s building works;

where the landlord deliberately and persistently attempted to drive a tenant out by intimidation; and ? where the landlord cut off the supply of utilities to the property.

However, each case turns on its facts and not all tenants are successful in obtaining damages for breach of covenant from their landlord.

For example, no breach was committed where the landlord alleged that the tenancy had ended and took possession proceedings through the courts, which ultimately proved unsuccessful.

Nor was a breach committed when a staircase, which interfered with the tenant’s privacy, was erected outside the premises, but did not otherwise constitute a nuisance.

There are many grey areas and it is often easier to state with certainty what actions will not constitute a breach. The duty does not of itself oblige the landlord to rebuild, repair or improve the property to make it suitable for the tenant’s use.

The general rule is that the tenant (much like a buyer) must beware of what he is renting and the landlord will not be liable for a pre-existing state of affairs that which interferes with the tenant’s enjoyment of the property.

For example, a landlord who let a badly soundproofed flat was not liable because the defect existed when the tenant took the lease and he was therefore deemed to have accepted it.

The duty may be breached by an act committed by a tenant of adjacent premises held under a common landlord who has authorised the interruption.

For example, where a landlord leases adjacent premises for a purpose that will necessarily result in a nuisance to his existing tenant.

The landlord is not responsible, however, in a situation where one of his tenants commits a nuisance and he merely does nothing to prevent it.

Where a tenant is dispossessed his remedy will in most cases be a claim for damages (compensation for his costs and expenses).

The measure of the compensation is the damage actually sustained. If the tenant has paid a lump sum or rent in advance he would be entitled to reimbursement.

He should also be able to recover costs reasonably incurred in resisting possession proceedings by a superior landlord, plus the cost of any award made against him in favour of that superior landlord, such as damages for trespass.

He may also be able to recover lost profits, the cost of obtaining temporary accommodation and any wasted expenditure spent in improving the premises.

Damages for mental anguish have also been awarded on occasion but the legal authority for such awards is questionable.

Quite often, a wrongful eviction will also give rise to a claim that is based in tort, for example trespass, nuisance or assault and battery.

In these cases the courts can award “exemplary” damages to punish the landlord by ensuring that he loses any profit made by his unlawful action.

Such awards are generally limited to cases where the landlord shows cynical disregard for the tenant’s rights; the most common example being physical removal of the tenant (or his possessions) from the property so that the landlord can re-let it at a higher rent.

Landlords should remember that an order of the court is always required before a tenant may be lawfully dispossessed. This is true even where the period of the tenancy has expired and the tenant has failed to pay rent or has breached other terms of his lease.

is an Attorney in the Property Law Department of Appleby Spurling Hunter. A copy of Mr. McKervey’s column can be found on the Appleby Spurling Hunter website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters described herein, persons are advised to consult with a lawyer.