Repairing covenant — Covenant of quiet enjoyment — Landlord carrying out repairs necessary under repairing covenant — Disruption to tenant’s business — Whether breach of covenant for quiet enjoyment where all reasonable steps taken to minimise disruption — Whether all possible steps required to be taken — Appeal allowed
The appellant was the tenant, and the respondent was the landlord, under a 22-year business tenancy of the ground floor and basement of a seven-storey building. The lease contained a landlord’s repairing covenant, pursuant to which the landlord brought in contractors to clean the external walls and windows of the building and to repair the seals between the frames and the walls. The work required scaffolding and sheeting to be fixed to the outside of the buildings. During the course of the works, the tenant’s restaurant business was seriously disrupted: from the outside, the restaurant appeared to be closed, and inside it became dingy and was frequently contaminated with building dust.
The tenant brought a claim against the landlord for damages for breach of the covenant of quiet enjoyment. The district judge found that the covenant had not been breached because the works had been necessary under the repairing covenant, and the landlord had taken all reasonable steps to minimise the potential risks of disruption arising from them. That decision was reversed on appeal, the appeal judge holding that the covenant would be breached unless all possible steps had been taken or the works would be impossible without some nuisance. The landlord appealed.
Held: The appeal was allowed.
It was possible for the covenant of quiet enjoyment to be breached by the execution of structural repairs and maintenance: Southwark London Borough Council v Tanner [1999] 3 EGLR 35 applied. However, the obligation to keep the building in repair had to coexist with the tenant’s entitlement to quiet enjoyment of the premises. That pointed to a threshold, for disturbance by repairs, of all reasonable precautions, rather than all possible precautions. The repairing covenant was for the tenant’s benefit as well as that of the landlord, and it was not beneficial for the tenant to be running a restaurant in a dilapidated building any more than it was in the landlord’s interest to own the reversion of one. It would have been apparent to the parties, when they signed the lease, that the tenant’s enjoyment of the premises might be made temporarily less quiet and less profitable by the carrying out of structural repairs, and that the landlord’s rights and obligations were neither to ride roughshod over the tenant’s entitlements nor to be unreasonably impeded by them: Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476, Saner v Bilton (No 1) (1878) LR 7 ChD 815 and Owen v Gadd [1956] 2 QB 99 considered. Since the opinion of the trial judge, that the landlord had taken all reasonable steps, was not contested, the appeal should be allowed.
Nicholas Dowding QC and Edward Peters (instructed by Guillaumes, of Weybridge) appeared for the appellant; David Berkley QC and Jonathan Rule (instructed by Gorvin Smith Fort, of Stockport) appeared for the respondent.
Sally Dobson, barrister
