Government COVID Shutdown Orders Don’t Violate Tenant’s Right to Quiet Enjoyment

What Happened: As courts continue to routinely reject force majeure, impossibility, frustration of purpose, and other defenses, it’s hardly surprising that retail tenants would come up with new theories to excuse their failure to pay rent during COVID-19 shutdowns. The fitness center tenant in this case contended that being barred from operating during the shutdown constituted a violation of the landlord’s covenant and warranty of quiet enjoyment. The trial court dismissed the claim without a trial, and the tenant appealed.

Ruling: The Washington appeals court upheld summary judgment in the landlord’s favor.

Reasoning: The covenant of quiet enjoyment doesn’t insure against interference by third parties. The landlord didn’t issue the public health orders and “was powerless to prevent the government’s closure of nonessential businesses like fitness clubs,” the court reasoned. Moreover, the lease stated that the covenant of quiet enjoyment was “subject to the provisions of this Lease.” That included the tenant’s requirement to “comply with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements. . . regulating the use by Tenant of the Premises.”

• Fitness Int'l, LLC v. Nat'l Retail Props., LP, 2023 Wash. App. LEXIS 329, 2023 WL 2132749