§ 22.02 Construction of the Covenant

• Jurisdiction: United States
• Publication year: 2022

§ 22.02 Construction of the Covenant

[1]—The Terms of the Covenant as Expressed in the Lease

The covenant of quiet enjoyment need not be expressly dealt with in the lease since it is implied. However, most leases do contain a quiet enjoyment section. These provisions usually diminish rather than enhance quiet enjoyment rights and must be carefully analyzed by the tenant.

The typical quiet enjoyment clause reads as follows:

Example 1:

Landlord covenants and agrees with Tenant that upon Tenant paying rent and observing and performing all the terms, covenants and conditions on Tenant's part to be observed and performed, Tenant may peacefully and quietly enjoy the premises hereby demised, free from any interference by Landlord, or anybody claiming rights by, through or under him or superior thereto.

Since the covenant of quiet enjoyment is implied in the lease, this clause does not grant any additional rights. It actually erodes implied rights since it conditions the tenant's quiet enjoyment rights upon the tenant paying rent and being in compliance with all of its other lease obligations. The condition applies despite the rule of independent covenants in leases that states that a breach of one obligation does not relieve the nonbreaching party from performing its contractual obligations. This rule is frequently cited when arguing against a tenant having a right to withhold rent payments when the landlord has failed to provide heat, air conditioning, repairs or other essential services. Absent an explicit lease provision allowing set off, deduction or withholding of rent, the tenant's remedies lie elsewhere.

The tenant must continue to meet its obligations even when the landlord is in default. Under the sample quiet enjoyment provision set forth above, even if the tenant has committed the smallest infraction under the lease, it loses all of the rights contained in the covenant. The loss of potential rights can be substantial even for a minor parking or signage rule violation.

[2]—Limiting the Landlord's Liability

The typical quiet enjoyment clause in a lease limits the tenant's common law quiet enjoyment rights. Its seemingly innocuous language that prevents the landlord from interfering with the tenant's quiet enjoyment rights actually limits the landlord's obligations. The landlord's responsibilities for protecting the tenant's quiet enjoyment rights is limited to controlling its own activities or those of its agents or other parties under the landlord's...