Harvey Haber's May 2015 Helpful Commercial Leasing, Arbitration And Mediation Tips

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.