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QUIET
ENJOYMENT IN LEASE AGREEMENTS
By
David W. Woodburn, Esq.
 One often-misunderstood concept in
leases is the right to quiet enjoyment. Virtually anyone
who has signed a residential or commercial lease has seen
a provision within the document stating that the tenant
has a right to quiet enjoyment of the property. An
average tenant does not understand the scope of quiet
enjoyment and often fails to realize when his or her
rights have been invaded by a landlord. Likewise,
landlords often fail to realize the significant scope of
the right to quiet enjoyment and inadvertently breach this
right in trying to place certain restrictions on the
tenant. The right to quiet enjoyment includes many
different elements, and lease provisions should specify
any restrictions.
Ohio law recognizes that there is a covenant of quiet
enjoyment implied in every lease. This covenant has been
recognized for over a century and is designed to protect
the tenant’s rights to the peaceful and undisturbed
enjoyment and possession of the lease property.
Although the name implies only one type of right, “quiet
enjoyment” is not simply the right to have a noise-free
tenancy. Rather, the right consists of the right to enjoy
unimpaired physical control of the
property at the time of the execution of lease, and
throughout the remaining term.
The covenant of quiet enjoyment is
breached when a landlord obstructs, interferes with, or
takes away from the tenant the beneficial use of the
leasehold to any substantial degree.
In other words, when the tenant is deprived of the
beneficial enjoyment of the leased premises, or even a
part of the leased premises, it is conceivable that the
right to quiet enjoyment has been breached. The tenant
does not have to be dispossessed of the property (as in
the case of an actual eviction), but can simply be
constructively evicted to constitute a breach of the
covenant.
A breach of the covenant of quiet
enjoyment can occur in many forms. For example, when an
owner permits the premises to deteriorate through lack of
heat, faulty electrical wiring, or poor structural
maintenance so as to create a substantial interference
with the beneficial enjoyment, a resulting breach of the
covenant of quiet enjoyment arises. Similarly, when an
individual locks the tenant out of the building or
prevents the tenant from using the building for a purpose
permitted under a lease, a breach of the covenant of quiet
enjoyment can arise.
The degree of the impairment required
to breach the covenant of quiet enjoyment is a question
for the court. When a landlord breaches the covenant of
quiet enjoyment, a tenant is relieved of its obligation to
pay rent for the premises. This is a significant weapon
available for the tenant to use if it feels it has been
injured by the landlord. The significance of this remedy
is evidenced by the
Hamilton Brownfields Redevelopment, LLC v. Duro Tire &
Wheel
case. In this recent case, a commercial landlord was held
liable for the breach of quiet enjoyment and the tenant
was relieved of its obligation to pay rent for the
premises. This result arose despite the fact that the
commercial landlord had brought a successful forcible
entry and detainer action against the tenant. The court
reasoned that although the tenant was entitled to be
evicted, the landlord’s decision to change the lease in
mid-tenancy so that the tenant could not continue with its
past use of the property constituted a breach of quiet
enjoyment. Accordingly, the commercial tenant was
entitled to damages for the period during which the
landlord was deemed to have breached the covenant of quiet
enjoyment.
Clearly, a landlord needs to be careful
how it enforces certain rules pertaining to its property.
Based on the Hamilton Brownfields case, a landlord
will want to specify the restrictions it desires to place
on the use of the property in the lease agreement.
Placing such restrictions clearly in the lease makes it
more difficult for a tenant to claim a breach of quiet
enjoyment when the landlord attempts to enforce those
restrictions. If the restrictions are not set forth in
the agreement, the tenant can argue that its quiet
enjoyment of the property has been injured.
From a tenant’s perspective, one will
want to pay careful attention to the terms and permitted
uses for the property under the lease agreement.
Obviously, the more restrictions in the document, the less
likely it is that
the tenant will be able to claim a
breach of the covenant of quiet enjoyment. Accordingly,
it is incumbent upon both the landlord and tenant to make
sure that they understand up front the permitted uses for
the property and any restrictions. Failure to do so can
result in an inadvertant breach of the covenant of quiet
enjoyment and entitle the tenant to damages.
David Woodburn is an Associate in the Real Estate &
Construction Law Practice Group. He can be reached at
dwoodburn@bdblaw.com or 330.258.6506.
NEW LICENSING REQUIREMENTS FOR TRADE CONTRACTORS
By:
Robert A. Hager, Esq.
Overview
New legislation for regulation of the commercial
construction industry in Ohio with an eye towards consumer
protection became effective on September 16, 2004.
Substitute Senate Bill 179 (“SB 179”) significantly
changes the Construction Industry Licensing Law. All
trade contractors (refrigeration, plumbing, electrical,
hydronics and HVAC) must now be licensed. Changes have
been made to the licensing and training requirements,
which now include licensing and training of backflow
technicians.
Consumer Protections
SB 179 creates sanctions designed to protect consumers.
These sanctions include significant fines, criminal
penalties and increased continuing education requirements
that can be imposed on licensed contractors. Consumers
were previously required to file a complaint against a
contractor within one year. Under the new law, consumers
can now file a complaint for up to three years.
Penalties for Unlicensed Trade Contractors
Now the Ohio Construction Industry Licensing Board (“OCILB”)
(formerly the Ohio Construction Industry Examining Board)
can take an unlicensed contractor to court for performing
unlicensed work. An individual performing trade work
without a license can face criminal charges of a minor
misdemeanor on the first offense and a misdemeanor of the
fourth degree on subsequent offenses.
Licensing Requirements
Every contractor now must annually renew its license and
comply with newly modified continuing education
provisions. Unexpired licenses may be renewed without
examination, and contractors with licenses from other
states may also be excluded from the examination
requirement, but must still obtain an Ohio license.
Municipalities and counties may no longer register
contractors who are not licensed by OCILB.
Separate definitions for each type of contractor have been
eliminated and combined into a new definition for
“contractor” as one who performs one or more licensed
trades. A “licensed trade” is “a trade performed by a
heating, ventilating, and air conditioning contractor, a
refrigeration contractor, an electrical contractor, a
plumbing contractor, or a hydronics contractor.” Backflow
technicians are now specifically included as a licensed
trade. Tradesperson trainees are no longer included in
the definition of a contractor.
Additional Information
For more information concerning the requirements of the
new law, contact Bob Hager at (216) 615-7318.
Applications, forms and other information can be accessed
and downloaded from the OCILB’s web site located at
http://www.com.state.oh.us/dic/dicocieb.htm.
Email Bob Hager at
bhager@bdblaw.com for a copy of the Act and the
Legislative Service Commission Final Analysis.
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John Ross joined Buckingham, Doolittle & Burroughs
this year as a Shareholder, bringing with him more
than 20 years of experience in construction law. After
his graduation from Ohio State University College of
Law,
John
joined a smaller firm in
Canton
that represented many construction clients.
“Early in my career,”
John explains, “I began working with commercial
builders, and that experience led me to my current
involvement with the Builders Exchange of East Central
Ohio. This is a trade association of building
contractors and affiliated businesses. As a
construction lawyer, I am an ‘affiliated business.’ ”
John also represents the Builders Exchange itself,
which serves commercial builders in Stark, Wayne,
Tuscarawas, Portage and Carroll Counties.
This extensive experience is
essential in the practice of construction law; when a
dispute arises, it usually needs immediate attention.
In the case of a labor dispute, there may be mass
picketing, and tempers can run high. When there is a
dispute between an owner and a contractor, timing is
also critical.
“A course of action needs to be taken
immediately, a decision made. You’d better know the
law,”
John says. “An owner may call – I represent both
owners and builders – and say, ‘Here’s the course of
action I plan to take. Is it within the bounds of the
contract and the law?’ ” Aware that the building
project is in process right now, John is committed to
respond immediately. “My clients depend upon my
opinion to govern their course of actions – how
they’re going to proceed under the contract.”
Public contracting presents an
additional level of legal issues.
John
represents a number of school systems, including
Canton City Schools, which was the first large urban
school district to complete a facilities construction
project. “The Ohio School Facilities Commission puts
in the majority percentage in these public
construction projects,” he explains, “and some
provisions of the contract are governed by provisions
in Ohio law.” The contracting for these and other
public building projects can become very complex.
John serves on the Board of Directors of SARTA and the
Canton Urban League. He is a member of the American
Ohio,
Ohio
State, and Stark County bar associations, and is
admitted to practice before the U.S. District Court,
Northern District of Ohio and the U.S. Court of
Appeals, Sixth Circuit.
KUDOS TO
JOHN!
On
November 10, 2004,
John was published in the Canton Repository,
Commentary Section, regarding the redevelopment of the
Gridiron District in Canton, OH.
To view a copy of this article, go to:
http://www.bdblaw.com/articledetail.asp?id=147.
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Prior to joining the law firm,
Mr. Reder was in private practice where he focused on
Architectural and Construction law. He is the author
of numerous articles for Professional Organization
Newsletters, including Code News for West
group.
Mr. Reder is a member of the American Institute of
Architects and Vice President/President-Elect of AIA
Ohio. He has also served in the capacity of
Secretary, and as a member of the following
committees: Presidential Citation, Board of
Directors, Financial Oversight Committee, Design Build
Task Force and Seal Law Task Force. In addition, he
has served on the Board of Directors of the AIA
Cleveland and received the President’s Award For
Outstanding Service in 2001. His other professional
affiliations include Construction Specification
Institute, American Arbitration Association, Ohio
Arbitration & Mediation Center, Inc., Editorial
Advisory Board of Code News, Vice Dean for Evening
Students of the Delta Theta Phi Law Fraternity, and a
member of the Tau Sigma Delta Honor Society in
Architecture and the Allied Arts.
Mr. Reder is a member of the American Bar Association,
serving on the Construction Law Forum and Litigation
Section of the Construction Litigation Committee. He
is also a member of the Ohio State Bar Association,
Construction Law Subcommittee.
He earned his J.D. at
Cleveland State University – Cleveland Marshall
College of Law. In addition, he has a Bachelor of
Architecture from Kent State University, School of
Architecture and Environmental Design. He attended
the
International
University of the Arts in Florence, Italy.
A full profile of
Henry Reder will appear in the next edition of Build
On This coming in 2005.
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Save the Date for our
Annual Real Estate & Construction Law Seminar:
Wednesday, February 23, 2005
Hilton Akron/Fairlawn
Registration
2:30 p.m.
Presentation
3:00 p.m. – 5:00 p.m.
Post Reception:
5:00 p.m. – 6:00 p.m.
Pending approval, this seminar will be offering 2 Credits
Hours through the
Ohio Division of Real Estate & Professional Licensing.
Invitations will be mailed in January, 2005 – OR -
register on-line now at:
http://www.bdblaw.com/seminars.asp.
Out
and About – Recent Presentations:
On October 22, 2004,
Edward
V. Buehrle
(Buckingham
AkronSM)
was a guest on the Ray Horner radio talk show featured on
WAKR. Ed’s topic, Disclosure Obligations When Selling
Residential Real Estate, was presented on behalf of
the Akron Bar Association.
On November 11, 2004,
Mark
F. Craig
and
John P. Slagter (Buckingham ClevelandSM)
presented at a Lorman Seminar in
Cleveland,
Ohio. Mr. Craig spoke on Preserving And Presenting Claims
Under Payment And Performance Bonds. Mr. Slagter
discussed the Bonding Off Liens and Notice To
Commence Suit On Liens. For more information on this
seminar visit
www.lorman.com.
On November 18, 2004,
Rana
M. Gorzeck
and
L.A.
Perkins
(Buckingham
BocaSM)
presented at the South Florida Chapter of the American
Women’s Society of CPA’s. Their topic was Trends in
South Florida Real Estate.
If you are interested in obtaining information on upcoming
seminars or would be interested in having speakers from
Buckingham, Doolittle & Burroughs, LLP make a presentation
to your organization, please contact: Lorna J. Henderson,
Client Relations Administrator at
lhenderson@bdblaw.com
or 800.686.2825 ext. 473.
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Buckingham
Canton
Buckingham
Cleveland
