Last year I blogged about a Nanaimo commercial tenant who defeated her landlord’s claim for unpaid rent on the grounds the lease had been fundamentally breached as a result of a pervasive odour. Neither the landlord, nor the tenant could find the source of the smell though it was related to the HVAC system. The odour was adversely affecting the tenant’s retail clothing business to the point she stopped paying rent. The landlord sued. At trial, the court found that the persistence of an unpleasant odour was a breach of the covenant of quiet enjoyment. The court held that the presence of “a strong and unpleasant odour” defeated the purpose of leasing the space “entirely by discouraging clientele from entering the Premises and ruining the product for sale.” It was substantial enough to entitle termination of the lease on the grounds of fundamental breach.
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