Question 2 2019 Exam Here, there is a lease between Naby and Dinkum Tents (Premises A), and between Naby and Robertson's containers (Premises B). Both leases are registered and for a term of 4 years. Both leases are therefore legal leases. A covenant is a contractual obligation made or implied in a lease that defines the rights and obligations of the landlord and tenant towards each other (Leahy v Canavan). Here, both leases contain a covenant from the landlord to provide for 'quiet enjoyment' of the leased premises. Even in the absence of such covenant, quiet enjoyment is implied at law. The covenant of quiet enjoyment obliges the lessor or those claiming under the lessor (in this case, the other tenants in the building) to not substantially interfere with the lessee or the lessee's enjoyment of the premises. Therefore, the premises must be peaceful and free from disturbance. Determining whether there has been a breach of quiet enjoyment is a question of fact (Aussie Traveller v Marklea; Byrnes v Jokoana). A breach will occur where there is a substantial interference with the tenant's use of the premises by the lessor or those claiming under the lessor (Southwark London Borough Council v Baxter). ** Examples of breaches of this covenant include: . The removal of windows by the lessor to force the lessee out (Lavender v Betts), \ . Cutting central services including cutting off fire sprinkler systems (Kohua Pty Ltd v Tai Ping Trading) · Cutting supplies of gas and electricity (Perera v Vandiyar) · Wrongfully evicting a lessee or throwing the lessee's property into the street (Musumeci v Winadell) · Making alterations to an adjacent property that would obstruct a lessee's potential customers (J C Berndt Pty Ltd v Walsh) · Intimidating, threatening or abusing the lessee (Kenny v Preen) · Failing to keep the drain pipes clear (Martins Camera Corner v Hotel Mayfair). If known to both parties, the nature of the business for which the leased premises is granted 'forms the framework of the analysis' as to whether the covenant is breached (Byrnes v Jokona). The purposes of the lease (here, manufacturing and sales) is known by the landlord, so enjoyment for that purpose is to be protected from substantial interference. Nevertheless, the interference must be with a property right, not purely commercial benefit. Caitlin (Dinkim Tents) has complained about the following
. The common area car park that is used for both premises A & B is often full of shipping containers . The positioning of the containers block the entrances to Dinkim Tens premises. . Robertson's Containers conduct is noisy The facts are similar to Byrnes v Jokona, where marine shipping containers were blocking car parks, blocking view of premises, and loud noises were caused by maintenance. A breach was found in this case. The fact that access to the premises is affected and Dinkim Tent's business is affected by the noise likely constitutes a substantial interference. As per Byrnes v Jokana, there is likely