What can you do when your landlord carries out work to a property and erects scaffolding that envelops almost the whole building, materially affecting your business?

This is what happened in a recent case that was heard in the High Court. The attached article tells the story of a tenant who sued his landlord on the basis that the works breached his right to quiet enjoyment of the property, which he uses as an art gallery.

It’s not in dispute that the landlord had a right to do the redevelopment work, as it was clearly permitted in the lease agreement between the landlord and tenant. Similarly, the tenant did reasonably expect some disruption, but found that the sheer scale and positioning of the scaffolding essentially enveloped his entire business, incorporating it into the building site, likely inferring that he was not open for business as usual. The tenant also complained about the level of the noise caused by the disruption.

The judge had to decide whether the landlord took all reasonable steps to minimise the disruption for the tenant, recognising that of course the tenant is entitled to carry on his business during the works and must be able to do so.

The judge concluded that "the way the scaffolding was designed and erected paid no or little regard to the interests of the tenant and was, for that reason, entirely unreasonable." He said he could " see no justification for the scaffolding having been erected in the way that it was."

This was the key to the judge’s decision in favour of the tenant. The judge acknowledged that the building work was going to be noisy and that a degree of noise with works of this nature is not unreasonable or unexpected. But his decision was influenced also by the fact that the tenant was not properly informed “about the magnitude of the works".

Ultimately, the judge awarded the tenant 20% damages in the form of a rent rebate for the duration of the works.

So whilst a landlord generally cannot be prevented by a tenant from carrying out works to a premises, the manner in which these works are conducted must be reasonable, including in the amount of warning notice of the works (longer periods of notice will be considered more reasonable), the amount of noise and disruption permitted, and the manner of any scaffolding or other obstructions to, or obscurements of, the tenant’s business premises. Other actions that can assist a landlord in demonstrating reasonableness where works to a rental building are proposed include consulting with tenants to share plans and address any queries or concerns raised, offering discounted rent during the period of disruption and keeping detailed contemporaneous records of all conversations and communications that take place with tenants.

Whether you’re a landlord or a tenant in this position and you’re in need of further advice about works proposed to a tenanted property, you can get in touch for a friendly chat and/or guidance about how to ensure you don’t end up in the situation reported above.

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