At the core of every modern residential rental agreement, there is the “Implied Covenant of Quiet Enjoyment”.
What is an Implied Covenant?
An “implied covenant” is a foundational concept built into every rental agreement, whether written or verbal, that gives the tenant certain rights.
The reason it is “implied” is because it doesn’t specifically have to be mentioned in the lease, and as far as I know, a landlord can’t force a tenant to waive this covenant.
What is “Quiet Enjoyment”?
“Quiet enjoyment” is one of two basic entitlements or covenants (the other being habitability) that the tenant is buying with his or her monthly rent.
The term is difficult to define because each situation is different and everyone has a varying opinion on what “quiet” and “enjoyment” mean.
According to Nolo, this covenant (or promise) means that the landlord will not do anything to disturb the tenants’ rights to peacefully and reasonably use their rented space—and that the landlord will act in a way that allows for peaceful use.
Essentially, it is the tenant’s right to reasonably occupy the dwelling peacefully, and without recurring disruption.
With every lease, a tenant gets the following rights:
- Privacy: A reasonable expectation of privacy;
- Peace & Quiet: Including the freedom from unreasonable and recurring disturbances from the landlord and/or other neighbors;
- Right of Use: Exclusive right of use, except for landlord’s reasonable right of access;
- Safety & Security: A premise & dwelling that provide adequate security and are free of bodily hazards;
- Basic Utilities: Access to basic services such as electricity, heat and hot water, which are also part of the implied warranty of habitability.
With that said, it doesn’t supersede a landlord’s right to enter the property with proper notice or in emergencies, conduct showings, or make repairs in a reasonable manner.
Noises, Disturbances and Nuisances
“Quiet enjoyment” generally applies to anything that creates a legitimate nuisance.
In most cases, it is only relative to the tenant’s ability to access and enjoy the premise.
Further, it certainly doesn’t guarantee “silence” as the word “quiet” would suggest. If that were the case, every rental in New York City would be in violation of this basic covenant.
To some, the sound of distant crickets is too overwhelming, while others will not even hear the sound of a freight train barreling past the house.
The term is subjective, not clearly defined in any law that I’ve seen (though I’m not a legal expert or lawyer) and it is certainly not restricted to audible noises.
A Good Rule of Thumb
The best way to figure out the severity of the disturbance is to ask yourself:
Would X prevent an average resident from reasonably accessing and enjoying the rental?
If the answer is “yes”, then you should probably do something about it. At the very least, attempt to remedy the situation.
A True Story
2013 – The Year of the Frogs
My wife and I had just bought a duplex, and it needed a lot of love. It was a short sale and the previous owners had let it go into disrepair.
After fixing up the two units, and finding tenants in the other half, we turned our eyes to the backyard which included in-ground
April had arrived and the weather was getting nicer. One night, I heard the sound of a single frog, croaking through the night. By the next evening, I had noticed there were multiple frogs, singing in a unified chorus.
It was quite relaxing really. I imagined myself sitting in an Adirondack chair, sipping and Arnold Palmer, at sunset in the Louisiana bayou.
By the third night, there were hundreds of frogs, broadcasting their mating call which could be heard from five blocks away. Good grief!
Apparently, this particular type of tree frog comes back to its birth place to mate!
Since my newly uncovered pool had been in disrepair for over 7 years, it meant that up to 7 generations of tree frogs were gathering at my pool for a midnight “romp in the swamp”.
Needless to say, my tenants weren’t too happy about it. They couldn’t sleep, and could barely watch tv without blasting the volume.
Though these frogs were a part of nature, they were on my property and they were creating an excessive disturbance. It was my responsibility as a landlord to find a solution.
Eventually, I was able to catch them (almost 400) over the course of two weeks, and relocated them to a nearby pond. Then I collected the multiple thousands of frog eggs and donated them to a nature center – to prevent a new generation from spawning in pool.
It took about three years for my efforts to pay off, but I’m proud to say that my rental no longer attracts these lovely amphibians.
Violating this Covenant
Similarly to the warranty of habitability, if the covenant of quiet enjoyment is continually or unreasonably broken by the landlord, manager, or owner’s agents, then the tenant can be relieved of his/her obligation to pay rent. Further, they could even terminate the lease.
That’s right, a tenant can terminate the lease!
In fact, this is the most basic concept in the landlord-tenant relationship: the tenant pays rent in return for a safe, habitable dwelling that he/she can enjoy.
A landlord or manager can be in violation of this covenant if he or she either creates or doesn’t remedy a legitimate issue. Lets examine some common violations to the covenant of quiet enjoyment:
Landlord or Agent:
- Enters the unit too frequently or without proper notice;
- Snoops through personal property;
- Fails to control disruptive nuisances, noises or behaviors, within reason;
- Harasses a resident in person or over the phone;
- Restricts or terminates essential services, such as water or electricity;
- Fails to repair items that affect habitability or items that were promised in the lease;
- Prohibits reasonable enjoyment of the property, such as entertaining guests.
Your tenant is not allowed to infringe on the neighbor’s right to quiet enjoyment. Since you don’t have a lease with the neighbor, this disturbance is simply called a nuisance and though not covered under this covenant, it could be a lease violation.
A neighbor could call the police and file a nuisance complaint, and if enough complaints are filed, the city/county may the landlord for the disturbances.
Your tenant, like every other citizen, it obligated to follow civil laws and noise ordinances.
Real Life Situations
|COVENANT VIOLATIONS||SIMPLE ANNOYANCES|
Loud parties happening next door, every weekend, way too late into the night.
Large dinner parties that end at 11pm.
Second-hand smoke entering the unit from the walls, floors, and outlets because the neighbor is smoking.
The neighbor smoking on his balcony, and the smoke stays outside.
|Loss of Parking|
Other cars parked in the tenant's dedicated parking spaces.
|First Come, First Served Parking
Not enough spots in the lot for all tenants.
Landlord legitimately harasses a resident in person, over the phone, or performs drive-by's regularly.
|Asking for Rent
Asking for overdue rent, multiple times in a week.
Failing to keep the wildlife under control, such as bears, loud frogs, and raccoons.
The existence of small seasonal wildlife, rabbits, crickets, birds, etc.
The neighbors above are teaching their kids to wrestle in the evening or late at night.
The neighbors above, simply walking around their apartment, at any time.
Dogs barking next door, all... day... long.
The occasional bark
A neighbor who goes on vacation and their smoke alarm goes off for 3 days straight.
The neighbor who's smoke alarm go off every time she cooks, but she quickly turns it off.
A ceiling that just won't stop dripping water. Tenant constantly has to clean it up.
Any cosmetic issues, such as a water stain on the ceiling from a previous drip that has since been fixed.
Major improvements that don't really need to happen while a tenant is living there. For example, adding a 1,000 sq. ft. addition, just because.
1-2 day fixed that require heavy machinery and/or the disconnection of utility service
- NYC Noise from Neighbors – NYC.gov
- What is the Implied Covenant of Quiet Enjoyment – Nolo
- Definition of Quiet Enjoyment – The Free Dictionary
- Breach of the Covenant of Quiet Enjoyment in a Rental Unit – Tenant Hub
- Covenant of Quiet Enjoyment – Cornell Legal Information Institute
- What Is “Quiet Enjoyment”? – LegalMatch
- Misinformation Regarding Quiet Enjoyment Clauses in Landlord-Tenant Leases Prevalent on the Internet – AVVO
- Quiet Enjoyment in Commercial Leases: What is it? Where is it going? – FindLaw