One of the many reasons you should have an experienced NYC commercial lease attorney draft and review your commercial lease is that all leases — both residential and commercial — contain implied covenants. These are like “invisible” provisions/clauses deemed by New York law to exist in every contract. Those not experienced with lease law will read the lease and be unaware that “invisible” clauses are deemed to exist. One such implied covenant is called the covenant of quiet enjoyment.

Quiet enjoyment is an implied provision — an invisible clause — that imposes an obligation on the LANDLORD to benefit the tenant/lessee. The covenant requires the landlord to provide the tenant/lessee with “quiet and peaceable” possession of the leased premises. Like other provisions in a lease, the covenant of quiet enjoyment is actionable. The tenant may sue the landlord for breach — a violation — of the covenant. Further, a tenant can use the covenant as a legal defense if the landlord starts the litigation.

So, what does the covenant of quiet enjoyment mean?

“Quiet enjoyment” essentially means a peaceful use of the property by the tenant/lessee of the leased premises as long as the tenant/lessee pays rent and otherwise abides by the lease terms. The covenant protects the tenant/lessee from being wrongfully evicted directly or by “constructive eviction.” Constructive eviction is where the landlord does something or several things that effectively prevent the tenant from remaining in possession of the property. An example might be where the landlord broadcasts loud music at the premises, both day and night, making it impossible for the tenant to operate its business or otherwise use the leased property. By contrast, an actual eviction involves the physical removal of the tenant from the premises.

Under New York law, whether actual or constructive — eviction is the key to any claim that the covenant of quiet enjoyment has been breached or violated. As New York courts have said, “unless there is an eviction, actual or constructive, there is no breach of the covenant of quiet enjoyment.” New York law defines “constructive eviction” more precisely than we did above. To prove a constructive eviction, four legal elements are required:

• One or more wrongful acts by the landlord
• That is substantial and material.
• That deprives the tenant of the beneficial use and enjoyment of the premises.
• Resulting in the tenant/lessee actually vacating/abandoning the premises

If the tenant/lessee remains in possession, there can be no claim for constructive eviction. Likewise, there can be no claim for the breach of the covenant of quiet enjoyment.

Wrongful Acts

Examples of “wrongful acts” could be:

• Playing loud music at all hours (as in our example). There could be exceptions, though, if the leased premises is, for example, above a nightclub and the tenant was aware of that.
• Turning off the tenant’s utilities
• Failure to provide air condition and heating (if required by the lease)

Note that the parties to a lease CAN agree to modify the implied covenant of quiet enjoyment. The parties might agree to limit the covenant to certain actions of the landlord. Alternatively, the parties might agree that the covenant is waived or disclaimed.

Contact Wright Law Firm NYC Today

For more information, call the experienced New York commercial lease and real estate attorneys at Wright Law Firm NYC. We provide top-tier commercial real estate legal services and legal services for the NYC business community. To schedule a consultation, contact our office by e-mail or call us at (212) 619-1500.