A recent case from Division I Washington Court of Appeals addressed both a landlord’s duties of repair and maintenance and the Covenant of Quiet Enjoyment in commercial leases. Votiv, Inc. v. Bay Vista Owner LLC, No. 78289-4-I, 2019 WL 4419446 (Wash. Ct. App., Sept. 16, 2019).
The Plaintiff in that case leased an office space in a mixed-use residential/office/commercial building in Seattle. Although the ownership groups of the various portions of the building were each separate, the entire building was managed by defendant Bay Vista Owner LLC (“BVO”), that was also the Plaintiff’s landlord.
There was a need to replace a deteriorating roof membrane to repair water intrusion into the building. The work involved significant demolition on the roof surface over the premises that Votiv, Inc. (“Votiv”), a music/media company, leased on the top floor. The repair work was done primarily during business hours causing significant disturbance to Votiv’s business operations.
Votiv sued BVO and other defendants for, among other things, nuisance, breach of lease, constructive eviction, and breach of the covenant of quiet enjoyment. The trial court denied Votiv’s claim for injunctive relief and granted summary judgment to the Defendants.
On appeal, the Court of Appeals reversed the trial court’s finding that the landlord had the right under the lease to enter the premises to effectuate repairs. The reversal was based, in part, on the determination that the structural roof surface was not part of the leased premises.
The Court explains the significant disturbance that was caused by the repairs was so serious that on some days the contractor suggested that Votiv employees wear earplugs.
Nuisance. The tort of nuisance is “an unreasonable interference with another’s use and enjoyment of property.” Votiv at *4. In that regard: A landlord can be liable for nuisance when carrying out repairs required by a lease if it does so in a manner that interferes unreasonably with its tenant’s leasehold. Id. In this case the Court held that the claims regarding nuisance were so factually intensive that summary judgment was not appropriate.
Quiet Enjoyment. Generally, a covenant of quiet enjoyment “secures the tenant from any wrongful act by the lessor which impairs the character and value of the leased premises or otherwise interferes with the tenant’s quiet and peaceable use and enjoyment thereof.” Cherberg v. Peoples Nat. Bank of Washington, 15 Wn.App. 336 (1976) (reversed on other grounds). “Washington cases have recognized a tenant’s right to quiet enjoyment in varied factual settings. Those include situations when the landlord’s construction work interfered with the tenant’s use of the leased premises.” Votive *6. Finding “there are genuine issues of material fact about whether BVO acted unreasonably when fulfilling this duty and deprived of the use and enjoyment of its office,” the Court again found summary judgment was not appropriate. Id.
Comment: A commercial landlord must fulfill its duties of maintenance and repair in a reasonable manner and, if not, could be liable for claims of both nuisance and breach of the covenant of quiet enjoyment. Before pursuing significant repairs to a commercial building, the landlord and contactor should evaluate the impact of the ongoing work on the building’s tenants and approach the project in light of those evaluations.