It is presently estimated that there are over 20 million dogs and cats in the UK. Given the number of people renting on short term lets, there is an increasing demand for pet-friendly tenancies. Further, longer term leases also have their issues for pet owners, mainly where there is an absolute ban, or where conditional approval is needed for a pet to be allowed in a flat.

This Legal Update focuses on 3 current areas potentially affecting landlords and tenant pet owners.

1. Jasmine’s Law

Named after the dog of a person who cannot have Jasmine the Weimaraner in his flat, due to a no pet clause in his tenancy agreement. Conservative MP, Andrew Rosindell, is introducing a Private Members’ Bill, the Dogs and Domestic Animals (Accommodation and Protection) Bill. This seeks to remove all bans on pets in tenancy clauses.

It proposes a right to keep a dog or other domestic animal in rented or temporary domestic accommodation in England. It remains to be seen whether the Bill, if passed, would apply to longer term leases. In the present Bill, “rented” includes “leasehold arrangements”, with no definition presently as to length of tenancy or lease that that would apply to.

There are exceptions proposed where the person responsible for the animal does not hold a Certificate of Responsible Animal Guardianship (to be obtained from a Vet), where there are animal welfare concerns, where the animal is a danger or where it causes a private nuisance to other persons in the vicinity.

The Bill proposes that the landlord can hold a Certificate of Exemption, (a) because the landlord or another tenant has a religious or medical reason to not come into contact with a dog or domestic animal, or (b) because the accommodation is unsuitable for a dog or domestic animal. Exemptions could apply to all or part of a building, or particular species or breeds of animal.

It is drafted to apply “notwithstanding any contract or agreement to the contrary”, so would seem to apply to both existing and new leases.

If the Bill is passed ‘organisations’ that are relevant landlords (of a certain size, as yet undefined), must prepare a statement on measures taken to support dogs and other animals in domestic accommodation for each financial year of the organisation.

The Bill has cross-party support, along with external Pet Charities, though the pandemic has slowed its progress. Presently, it has passed its first reading in the Commons. A second reading is the next step, though no date is as yet fixed. If passed, it would be a significant change to the present situation, where currently a landlord will usually have the ultimate say over whether a pet will be allowed.

2. The Model Tenancy Agreement - new pet clause

The government has recently announced that it has produced a guide tenancy contract for residential property, the Model Tenancy Agreement (found here) which is the government’s recommended contract for residential landlords, though not compulsory.

Responsible tenants with well-behaved pets will, in the government’s view, be able to secure leases more easily through the new Model Tenancy Agreement. The changes aim to strike the right balance between helping more people find a home that is right for them and their pet, while ensuring landlords’ properties are safeguarded against inappropriate or badly behaved pets.

Under the new Model Tenancy Agreement, landlords will no longer be able to issue blanket bans on pets. Instead, consent for pets will be the default position, and landlords will have to object in writing within 28 days of a written pet request from a tenant and provide a good reason, for instance, in a smaller property or flat the landlord may say that owning a pet could be impractical. A landlord must not unreasonably withhold or delay a written request from a tenant without considering the request on its own merits.

To ensure landlords are protected, tenants will continue to have a legal duty to repair or cover the cost of any damage to the property. Permission may be given on the condition that the tenant pays an additional reasonable amount towards the deposit, but the deposit must not breach the deposit cap requirements under the Tenant Fees Act 2019. Any pet can, in theory, be allowed as there is no definitive list of pets covered by the new clause.

It remains to be seen whether landlords will simply ignore the New Model Agreement and use their own versions with a pet ban clause

3. Pet consent in longer leases

In longer leases, there will most likely be a lease covenant providing an absolute covenant against pets, or, alternatively, a qualified covenant that consent is needed from the landlord first, not to be unreasonably withheld. Where there is no prohibition or requirement to obtain consent then no consent is required and the following has no relevance.

Where pets are mentioned in the lease and there is a prohibition or restriction then the following is particularly relevant to you and should be considered closely before any consent is granted.

The recent case of Duval v 11-13 Randolph Crescent Limited [2018] EWCA Civ 2298 is very relevant when considering long lease pet clauses. It applies to absolute covenants and whilst in this particular case the issue related to alterations to the flat in question, the decision is considered by many commentators to relate to any instance where something, pets, alterations or subletting, for instance, is subject to an absolute prohibition. The Supreme Court confirmed in Duval that landlords should ensure, when faced with requests for consents under a lease, that consent is only granted where the landlord is entitled to do so.

Where the lease contains:

1. An absolute prohibition against certain conduct (e.g. a ban on pets);

2. A commonly found provision that all leases in the development are to be granted on similar terms; and

3. A commonly found provision that where a lessee is prepared to indemnify the landlord’s costs, the landlord is obliged to enforce the provisions of the leases against a lessee who is in breach;

the landlord may not grant consent for something that would otherwise breach the terms of the lessee’s lease, as to do so will amount to a breach by the landlord of its own obligations to all other leaseholders.

Accordingly, whereas previously a landlord might have been more flexible in the context of an absolute ban on pets, now there can be ramifications, if another lessee does not want the pet ban relaxed.

Where consent is provided in those circumstances, a landlord should be prepared for legal action by complaining leaseholders to compel the landlord to enforce the prohibitions under the lease, or a claim in damages. This warning is not to be taken lightly.

If however, the ban was within a regulation, as opposed to a covenant, then it is less likely that Duval will apply, and therefore the landlord would have more flexibility if faced with a request for a pet to be allowed.

Finally, where the leaseholder is particularly keen to have the pet despite a prohibition in the lease, an application can be made to the Upper Tribunal (Lands Chamber) under s.84 of the Law of Property Act 1925, to modify or discharge the covenant prohibiting the keeping of pets. The leaseholder would have to satisfy the Tribunal that certain grounds, set out in the legislation are fulfilled and it would therefore be wise to obtain legal advice before pursuing the point. The leaseholder requesting the change would likely be asked by the landlord to cover all costs incurred in making the application and the success of such an application is far from guaranteed.

Conclusion

As a firm of pet lovers, we are keeping a careful watch on this area of law as it develops, and will provide more information in future Legal Updates as it arises.

As ever, if you do have any queries, please do contact one of our team, whether by email at info@kdllaw.com or on 01435 897297.

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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