§ 22.01 Quiet Enjoyment

• Jurisdiction: United States
• Publication year: 2022

§ 22.01 Quiet Enjoyment

[1]—Scope

The right of quiet enjoyment is almost universally recognized as implied in a lease.¹ Therefore, in many instances, the tenant is better off with little or nothing said about it in the lease rather than having a section specifically addressing the topic.

Through the covenant, the landlord agrees not to disrupt or disturb the tenant in its use or enjoyment of the demised premises by any of its own wrongful acts or those of its successors in interest or anyone asserting paramount title to the tenant's superior possessory interest.² In effect, the covenant states that a tenant should have "quiet" and "peaceful" possession of the premises for the term of the lease.³ The right of quiet enjoyment applies with respect to all leases, including oral agreements that are less than a year in length or that are not subject to the Statute of Frauds. New Jersey is the lone holdout that does not imply the covenant when a landlord-tenant relationship exists.⁴ The extent of the protection of the implied covenant varies from state to state.

The covenant of quiet enjoyment operates independently of other lease covenants. As such, its enforcement by a tenant is not dependent upon any of the tenant's activities or upon its compliance with other lease obligations or covenants. Thus, in its pure and unaltered form, a tenant may bring an action against the landlord for breach of the covenant of quiet enjoyment regardless of whether the tenant has paid rent or is in compliance with the other terms of the lease.

[2]—History of the Covenant

The covenant of quiet enjoyment has evolved from a protection of the tenant from physical expulsion or intrusions upon its right to use the premises into a more general protection of the tenant from both interference with title and physical intrusions onto the premises. Further, the covenant also has grown into a protection against interference by the landlord or its agents with the tenant's beneficial enjoyment of the premises.⁵

This covenant as it has evolved often takes the tenant out from under the harsh traditional rule that the tenant takes the premises "as is" if nothing further on the subject has been stated in the lease. This last principle has led to some speculation on the extent to which the covenant might lead to other implied warranties by the landlord, such as the warranty of habitability that is common in residential leases, but has not been widely adopted in commercial leasing transactions.⁶ The willingness of the courts to imply a covenant of quiet enjoyment has been relied on by tenant-plaintiffs to argue for implied warranties of fitness, suitable condition of the premises and other consumer protections in commercial leases.

The history of the lease has been traced by one commentator from its harshness in common law through the conflict over whether a lease being should be viewed as a transfer of an estate or as a contract.⁷ That commentator states that it is within this backdrop that the doctrine of good faith and fair dealing has been injected into commercial lease law.⁸ He further notes that modern courts interpreting commercial leases routinely answer the difficult questions by focusing on the contract law doctrine of the implied covenant, but fail to look at the theoretical underpinnings of the doctrine. Sophisticated real estate attorneys chafe at the easy application of the doctrine to commercial leasing, arguing that there are good...