30 March 2026
6 min read
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'Quiet enjoyment' might constitute your plans for the weekend after a busy week, but it is also an express covenant that appears in most retail, commercial, industrial or residential leases to protect a tenant’s right to use the property without unreasonable landlord interference. Even if a lease is silent on this matter, it is still commonly implied unless the lease expressly excludes it.
For landlords, particularly those operating major shopping centres and large commercial assets, quiet enjoyment is often misunderstood as a tenant-only right and overlook how much it actually limits or affects their own actions. In reality, it is a recurring source of dispute, particularly where works, asset upgrades, centre management activities and other competing occupier interests are unavoidable.
For that reason, it is crucial that landlords understand the scope of the covenant, how it has developed, and where courts have found landlords to be in breach.
The covenant for quiet enjoyment encompasses two related but distinct themes.
Firstly, the covenant operates as a guarantee of the tenant’s title under the lease. The landlord assures the tenant that they will acquire a valid title for the duration of the lease and will enjoy security of tenure and possession without interruption.
Secondly, and perhaps more importantly, the covenant secures for the tenant uninterrupted enjoyment of the leased premises. 'Quiet' does not just refer to an absence of excessive noise, but rather to the tenant’s freedom from substantial interference as they use the premises as lawfully permitted.
A lease grants a tenant exclusive use and occupation of the leased premises, subject to the lease terms and any rights expressly reserved by the landlord.
Over time, the courts developed a doctrine under the common law imposing an implied obligation on landlords not to substantially interfere with the tenant’s use and enjoyment of the premises. This extends beyond direct acts of the landlord to interference caused by the landlord’s agents or third parties claiming through the landlord.
Whether interference is 'substantial' is a question of fact. Courts assess the nature, duration and impact of the interference by reference to the tenant’s permitted use of the premises.
In a shopping centre and major asset context, alleged breaches most often arise from operational and redevelopment activities rather than intentional conduct. Examples include:
Courts have repeatedly found landlords in breach of the covenant for quiet enjoyment where works or omissions have substantially interfered with a tenant’s permitted use of the premises.
In a New South Wales case involving a hearing aid retailer, landlord building works generated noise, dust and vibration that interfered with the tenant’s ability to conduct specialist testing and sales (Telex (Australasia) Pty Ltd v Thomas Cook & Son (Australasia) Pty Ltd (1970) 2 NSWR 257).
In an English decision involving a street-front shop, scaffolding erected during repairs obstructed the shopfront and deterred customers, amounting to actionable interference (Owen v Gadd (1956) 2 All ER 28).
Service and maintenance failures can also create problems. In an ACT case involving a restaurant, a defective ventilation and exhaust system materially affected the tenant’s ability to operate its business (Battik Pty Ltd V Hawkesbury Nominees Pty Ltd & Ors (1999) ACML 85-104; [1999] ACTSC 550). Other NSW cases involved a call centre’s façade works that created noise, vibration and dust that interfered with operations (Telstra Corporation Ltd v Sicard Pty Ltd (2009) ACML 85-337; [2009] NSWSC 827) and water leaking through the roof of a camera retailer, which was under landlord control, damaged stock and deemed a breach of quiet enjoyment (Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15).
If a breach occurs, a tenant can ask the court to stop the landlord’s conduct, seek compensation for losses, and in serious cases, end the lease altogether.
In retail leasing, the traditional legal duty of quiet enjoyment has been expanded, and in some cases replaced, by retail leasing laws that impose additional obligations on landlords, although the nature of those obligations varies between the states and territories.
For example, in New South Wales, section 34 of the Retail Leases Act 1994 (NSW) requires landlords to rectify certain matters as soon as reasonably possible after receiving a written request from the tenant. This includes when a landlord substantially restricts the tenant’s access to the premises, takes action that inhibits or alters customer flow, significantly affects the tenant’s ability to trade, fails to rectify breakdowns of plant or equipment under the landlord’s care, or fails to clean, maintain or repair the retail shopping centre, including common areas.
If the landlord does not rectify the matter within a reasonable timeframe, they may be required to compensate the tenant for any loss or damage suffered.
Future works are a particular risk area. Landlords should provide tenants with a clear written statement before entering into a lease.
Best practice includes a specific description of the anticipated disturbance, an assessment of the likelihood of the disturbance occurring, and, as far as reasonably possible, the timing, duration and expected effect of the disturbance.
If future works are properly disclosed before the lease begins, it is much harder for the tenant to succeed in a future claim for breach of quiet enjoyment as a result of those works. In fact, the Retail Leases Act in NSW specifically allows a landlord to limit a claim for compensation if a sufficiently detailed written statement was provided to the tenant before entering into the lease.
Landlords should know that quiet enjoyment can be breached by failing to act, not just by doing something that interferes with a tenant. Although the right exists automatically under the law, it is best dealt with clearly in the lease. Breaches are not limited to noise and can include problems with access, services or maintenance. To succeed, a tenant must show serious interference with their permitted use of the premises. Claims for damages require evidence of actual business loss, and minor or accidental disruptions will not usually give rise to liability.
For major landlords, quiet enjoyment is not an abstract legal concept but a practical consideration that should be managed alongside redevelopment, asset optimisation strategies and the ongoing management of complex retail environments.
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Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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