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A Question of Quiet Enjoyment

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When is a landlord in breach of covenant of quiet enjoyment and non-derogation from grant?

Lauren Walker of JB Leitch’s litigation team considers the question of preserving quiet enjoyment and highlights some of the issues that may face landlords in terms of breaching their lease obligations when considering necessary works…

As a result of the government driven “brownfield first approach”, redevelopment of existing commercial premises is becoming increasingly popular. In contemplation of redevelopment works, landlords should be mindful of their obligations pursuant to the lease including or in addition to the covenants of quiet enjoyment and non-derogation from grant.

This blog explores the interaction between the covenant for quiet enjoyment and the doctrine against derogation from grant, with particular reference being made to the case of Timothy Taylor v Mayfair House Corporation and another [2016] and where the erection of scaffolding can open up a landlord to potential claims against them.

Doctrine against derogation from grant v covenant for quiet enjoyment

The implied covenant of non-derogation from grant prevents landlords who have granted a benefit to a tenant from acting (or failing to act) in a way which substantially deprives the tenant of enjoyment of that benefit. In other words, and as established in Harmer v Jumbil (Nigeria) Tin Areas [1920], landlords are not to “take away with one hand what is given with the other”. This doctrine applies to land retained by the landlord and exists to prevent landlords from acting in a way which interferes with the use for which the premises is let to the tenant.

An express covenant drafted into a lease cannot exclude the principle of non-derogation from grant, where this is attempted it shall be wholly rejected by the court as a tenant cannot be deprived of an “irreducible minimum” protection (Platt v London Underground [2001]). Conversely, the covenant for quiet enjoyment in favour of the tenant protects a tenant against interference and disturbances by a landlord. It is most often the case that a lease will contain an express covenant for quiet enjoyment.

The courts have frequently construed the two covenants as being almost synonymous and it is established that the covenants are to be considered in conjunction with one another.

A Case in Point: Timothy Taylor v Mayfair Corporation and another [2016]

In this case, the landlord had let the premises to the tenant for use as a high-end art gallery in Mayfair. The lease contained an express covenant for quiet enjoyment in favour of the tenant but also granted rights in favour of the landlord to carry out works. Pursuant to the lease, the landlord was permitted to erect scaffolding on a temporary basis provided that it did not restrict access to or enjoyment of the premises.

Upon commencement of the landlord’s redevelopment of the upper floors of the building, the tenant claimed that the manner in which the scaffolding had been erected around the building had given the appearance that the gallery was closed. The tenant sought to claim damages for a breach of quiet enjoyment and non-derogation from grant on this basis, in addition to the level of noise emanating from the works. The tenant also sought an injunction to remove the scaffolding.

Whilst the tenant accepted the landlord’s right to carry out the works under the lease, they argued that the actions taken by the landlord were unreasonable and in breach of covenant.

The decision

In reaching its decision as to whether the landlord had been in breach of covenant, the High Court considered a number of factors including:

  • Whether the landlord was acting under its repairing covenants under the lease, or whether the works were being carried out for the landlord’s own financial benefit;
  • Whether reasonable steps had been taken by the landlord to minimise disturbance;
  • The nature of the property itself;
  • Whether the tenant had been notified as to the extent of the intended works, for example the time period in which the scaffolding will be required, at the time of the grant; and
  • Whether the landlord had been unreasonable in failing to offer compensation to the tenant albeit the court recognised that the landlord was under no obligation to do so.

The court found that the landlord was in breach of its covenant for quiet enjoyment under the lease in that (considering the noise and scaffolding in conjunction) the works had ‘materially adversely’ restricted access to the use and enjoyment of the gallery. Furthermore, it was considered whether in granting occupation to the tenant for use as an art gallery yet commencing works which significantly impacted upon enjoyment of the premises, the landlord was in breach of the covenant for non-derogation from grant.


In consideration of redevelopment works, landlords should be mindful of their obligations pursuant to the lease, especially the covenant of quiet enjoyment.

Landlords should also question whether the works will impact significantly upon the purpose for which the premises is let. In any dispute concerning derogation from grant, the extent of the grant itself and the surrounding circumstances (particularly at the date of the grant) will be vital considerations. By failing to act reasonably with a view to limiting interference, landlords are at risk of claims for damages being made against them for breach of covenant for quiet enjoyment and non-derogation from grant.


Where scaffolding will be required for any necessary works, landlords should give thought to how the impact of the scaffolding upon the tenant’s use and enjoyment can be minimised. For example, ensuring that scaffolding is erected only in areas where it is absolutely necessary and in a manner which does not restrict access to the building. Providing notice of the extent of the scaffolding (for example, with regards to the timeframe and appearance) allows for any dispute to be raised and addressed in the early stages. Further, this affords the tenant time to make alternative arrangements where necessary. Landlords may also wish to consider whether an offer of compensation or reduction in rent would be appropriate. In the case of Jafari v Tareem Ltd [2019] it was held that waiver of the rent during the period in which the works were carried out constituted adequate compensation.

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