A persistent foul smell in a commercially leased retail clothing store is a breach of the “quiet enjoyment” covenant, a British Columbia court has found.
The landlord had sued the tenant for breaching the five-year lease by handing in the keys, repudiating the lease and moving to a new location. The tenant filed a counterclaim for damages.
Despite the landlord’s claim that there was no bad smell, BC Superior Court found the foul odour was substantial, entitling the tenant to terminate the lease. The stench defeated the purpose of leasing the space by discouraging clients, ruined the products for sale, and breaching the “implied term” that the location would be fit for the sale of merchandise.
Court awarded the tenant damages for the costs of renting a new store, and for renovations done in the smelly location.
It’s not known what caused the smell, the decision notes.
Stearman v. Powers, 2013 BCSC 1160 (CanLII)