With heights of buildings set to increase in Dublin when re-developing properties, does the developer need to be concerned with its existing tenants right to quiet enjoyment? How easy is it for a tenant to argue that a landlord's further development will be a derogation of the tenant's existing grant and its right to enjoy the occupation of its property.
A recent unreported case in the UK (Francia Properties Limited v Aristou (Central London County Court)) has ruled in favour of a landlord allowing it to develop an additional flat on the roof of its building. This decision was allowed even though the tenant of the top floor had argued such development would breach its covenant to quiet enjoyment as there would be significant loss of sunlight to its terrace.
In the UK there has been a furry of cases brought to the courts where tenants have tried to halt the landlords from developing/ extending their buildings. The court is tasked with finding the correct balance between the landlord's right to develop his own property and the tenant's existing right to enjoy their property. These cases have shown that it is difficult to predict which way the courts will decide. A decision is usually made on fact and degree.
This case has shown that a well drafted right to build in a lease in favour of the landlord will greatly assist a landlord's argument that it is entitled to develop.
COUNCILLORS HAVE APPROVED plans to allow apartment blocks up to 24 metres (eight storeys) in height to be built in Dublin city. Apartment blocks in the inner city can currently be 19 metres in height (or six storeys) and offices are allowed to be 28 metres (or seven storeys).