A lease is a legal agreement that gives you the right to live in a flat or house for a set period of time. When you buy a new property, you are granted a new lease by the developer or freeholder. f the property is not a new build, you get the lease from the previous owner.
The lease will set out your rights and obligations. Your rights could include:
- use of a car parking space
- access to communal areas
- use of a designated bin store
If your landlord interferes with your rights, there are two important legal principles that may be of assistance to you:
- derogation from grant – your landlord cannot take away rights they have already given you. This right is implied, meaning that you have it even if the lease states nothing about it.
- quiet enjoyment – your landlord must not disturb how you use your home. This right is a standard feature in most leases and it is implied where not expressly set out in the lease.
Derogation from grant
If your landlord gives you a right or benefit in your lease, they cannot later do something that makes it impossible or difficult to use that right.
This principle reflects the idea of fair dealing between you and the landlord. The landlord cannot give with one hand and take away with the other. This right is typically relied upon by leaseholders to prevent landlords from doing something that makes the property materially less fit for the purposes for which the lease was granted, and preventing the leaseholder from enjoying their property.
What are examples of derogation from grant?
- blocking or landscaping over a parking space so you can no longer use it
- stopping a leaseholder using a right of way or placing an obstruction in their path
- preventing access to a garden that the leaseholder has the right to use
If your landlord acts in such a way, you may have grounds for legal action, but it is usually best to try resolving the issue first, such as through mediation.
Quiet enjoyment
Contrary to popular belief, the landlord’s obligation to give quiet enjoyment has nothing to do with noise levels at the premises. It means the leaseholder has a right to occupy and use the property without substantial interference from the landlord.
The clause may be broken by the landlord carrying out work on other parts of the building that causes such a level of nuisance to the tenants that leaseholders find it impossible to live in the property. The leaseholders would have to prove that the landlord’s works was an activity which left the property uninhabitable.
What is ‘substantial interference’?
Substantial interference is something that seriously disrupts a leaseholder’s ability to use and enjoy their property. Examples include:
- cutting off the gas and electricity supplies to the leaseholder’s property
- flooding caused by water from the landlord’s neighbouring property which damages the leaseholder’s property
- continuous loud noise, dust and dirt which interferes with the leaseholder’s enjoyment of their property
- putting the leaseholder in fear and intimidating them into leaving the premises
- a significant obstruction of access to the leaseholder’s property, such as scaffolding
Is there any useful case law about quiet enjoyment and derogation from grant?
The case of Timothy Taylor Ltd v Mayfair House Corporation & Another [2016] EWHC 1075 (Ch), [2016] All ER (D) 97 (May) involved the tenant of an art gallery in Mayfair. The tenant recognised that the landlord was entitled to carry out works and accepted that some disruption to the use and enjoyment of the premises was inevitable. However, the tenant complained that the manner in which the work had been carried out was unreasonable in that it paid little or no attention to their rights under the lease.
In 2013, the landlord began works to develop the upper floors of the building in which the gallery was located. Originally, the landlord had presented the tenant with a design for the scaffolding which was considered ‘not wholly intrusive’ as the gallery could still be seen from the street as open for business and readily accessible. However, once the scaffolding was put up, the gallery was ‘practically invisible’. This, together with the impact caused by the noise of the works, led the tenant to claim for damages for past breaches of its right to quiet enjoyment and an injunction requiring the landlord to dismantle the scaffolding and restricting noise limits.
The landlord was held not to have struck the balance correctly: they had not discussed their proposals adequately with the tenant nor offered any kind of compensation during the works.
The moral of this story is clear: if works are going to be carried out, then the landlord must be reasonable and communicate the proposed plans to the tenant, explaining the likely duration of works and expected noise levels. The landlord should instruct contractors to take account of the tenant’s use and enjoyment of premises.
Whilst this judgment involved a tenant under a commercial lease it could equally apply to owners of residential leasehold property such as of a flat in a building.
Remedies
If the landlord breaches their obligations of quiet enjoyment or derogation from grant, the leaseholder can take legal action against the landlord. They can get an injunction to limit the interference and seek damages in the County Court for losses caused by such interference.
Obviously, this may be a costly, stressful and time-consuming option and it is always advisable to consider other methods first, such as mediation. If you are considering taking legal action, please seek further advice from a suitable solicitor .
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