Termination of Lease for Non-Repair
It is not clear how far our courts will be willing to accept an argument that a breach of a covenant to repair by a landlord can amount to a fundamental breach entitling a commercial tenant to treat the lease as terminated.
Which Breach?
Where the interference by a landlord in a tenant's premises is such that it goes beyond mere annoyance to the level of an "invasion of a tenant's peace and comfort", then our courts have held that it constitutes a breach of the covenant for quiet enjoyment. Where, however, the degree of interference is so great that it would cause a reasonable person to vacate, then out courts have held that in such a situation, it constitutes a fundamental breach of the lease. Our courts continue to struggle with the particular fact situation before them in an attempt to categorize the nature of the interference.
Injunction for Breach of Covenant for Quiet Enjoyment
A commercial tenant may obtain injunctive relief to restrain a breach of the covenant for quiet enjoyment by a landlord. The plaintiff tenant, however, must meet the usual tests to obtain an interlocutory injunction (serious issue to be tried: irreparable harm which is not compensable in damages and balance of convenience).
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