Legal insight and perspective from the Steinbergs Team
Published: April 29, 2024
Category: Real Estate
By way of explanation, commercial leases typically include an express provision stating that the landlord will not interfere with the tenant’s use of the premises (a right to quiet enjoyment). Where a lease is silent on the matter, a covenant for quiet enjoyment will be implied pursuant to section 23 of Ontario’s Conveyancing and Law of Property Act.
As a result, tenants generally have a right, subject to the terms of their leases, to the quiet enjoyment of the leased premises. This right prohibits a landlord from engaging in conduct, or permitting a third party to engage in conduct, in a way that substantially interferes with the tenant's ability to use (or “enjoy”) the premises.
While a landlord’s direct physical interference with the leased premises may constitute a substantial interference, so may indirect or non-physical interference. For example, a breach of the right to quiet enjoyment may be found as a result of such things as construction noise, odors, harassment of a tenant, or even where a landlord leases a neighbouring premises to an incompatible tenant (imagine a shopping mall leasing space adjacent to your yoga studio to a rock band looking for rehearsal space).
Ultimately, determining whether a landlord has breached the covenant for quiet enjoyment will depend on the particular facts of the case. It is thus advisable that landlords ensure their leases adequately address issues respecting quiet enjoyment, as well as seek advice before engaging in conduct that may result in a breach of their obligations. Conversely, when negotiating a lease, tenants should pay close attention to the provisions in the lease which are intended to restrict tenant’s quiet enjoyment rights for a prolonged period of time (i.e. landlord alteration/renovation rights).
