Although non-residential real estate leases provide for a variety of obligations, which are often more onerous for the tenant than the landlord, it is the very essence of the lease that the landlord must provide the tenant with the peaceful enjoyment of the leased premises. This means unimpeded possession that enables the tenant to fully use the premises for the purposes for which they were rented. The tenant is entitled to conduct its activities in the premises with peace of mind and without fear of the risk of accidents.
The obligation to provide peaceful enjoyment extends both to the leased space, to the areas used jointly by the tenants of the property, and to the appurtenances necessary for its use. It is a continuous obligation that is binding on the landlord until the end of the lease.
Peaceful enjoyment is a concept which is assessed, firstly, according to the authorized use of the leased space, but also in light of all the circumstances surrounding the lease and the property. The nature of the tenant’s activities, the main reasons for the tenant’s lease of this space in the building, the location of the property in the city or chosen sector of the city, the type of construction of the building and neighbouring area, are some of the factors to be considered in assessing the peacefulness of the occupancy and the use of the leased premises by the tenant. This is because, for some tenants, the same event may prevent or interfere with the normal exercise of their activities, while it would have little impact on others. For example, one can imagine the consequences of opening a bar in a building housing a law firm as compared to opening a bar in proximity to a billiard hall.
The criterion used for assessing the peaceful enjoyment afforded to the tenant is the average person. Moreover, the landlord’s duty to provide peaceful enjoyment does not require it to provide exceptional services in order to take a specific situation into account.
Interference with peaceful enjoyment may be due either to the conduct or omissions of the landlord and its employees, or to disturbances from circumstances under the total or partial control of the landlord, such as those caused by other tenants in the building. Thus, the landlord may not transform the physical space of the building with the effect of restricting access to the leased space or preventing the free use of the amenities and services available to the tenant without the risk of infringing on peaceful enjoyment. It cannot turn a blind eye to a water leak, an invasion of cockroaches, constant loud noise or a persistent toxic odour without incurring its liability. Nor may it make excessive use of its right to visit the premises for an inspection or to re-lease or sell them without exposing itself to damages, an abatement of rent, or even termination of the lease.
As important as it may be, the landlord’s obligation to provide peaceful enjoyment is sometimes limited by the consent of the parties through the insertion of a clause in the lease exonerating the landlord of any liability in this regard. The effect of such a clause has been reviewed on several occasions and recognized as valid by the courts, although they found it to be inoperative in cases where the tenant was totally deprived of the enjoyment of its space, or where the peaceful enjoyment was disturbed by the deliberate acts of the landlord. And justifiably so, since the peaceful enjoyment of the premises chosen by a tenant to carry on its activities is the primary benefit sought by it and for which it pays a price. It is a benefit which should not be nullified. The use of such a clause requires both care and advice.