Whether you are finding tenants for landlord clients or managing a development, the issue of pets and whether or not the occupier of a property is able to keep them at the property is becoming a more common question. A response from the owner of a property is often “I own my flat [or house] so who is to say that I, or my tenant, cannot keep a dog/cat/other pet?”

The answer to the above question is dependent upon the covenants affecting the property and, whilst most commonly found in leasehold property, some freehold properties may also contain restrictions, particularly those forming part of a managed estate or development.

The relevant covenants by the owner of the property may consist of:

1. a total prohibition on the keeping of all or certain pets; or

2. a requirement that prior consent be obtained from the landlord or management company (or both) if the occupier wishes to keep a pet.

Most covenants on this issue will refer to pets and/or birds and other domestic animals. Whilst there is no definition for “pet” in English case law, it is generally the case that the courts will refer to ‘domestic animals’ and so a dog, cat, bird, goldfish, other tank dwelling animal, and just about every other possible option for what you and I would consider today as a household pet, is likely to be caught.

Where the agreement affecting the property contains no specific restriction or prohibition on the keeping of pets (or other animals) then it remains possible for a landlord or management company to object to the keeping of a pet by relying on any general nuisance clause contained in the agreement. The landlord or management company would need to be able to provide strong evidence of actual nuisance being caused by the animal in question, however, such a claim would need to be properly thought through and prepared before being pursued. That said, it does remain an avenue for the removal of a nuisance animal where there is otherwise no specific ban on pets.

What is the position where a disabled owner/tenant requires an Assistance Dog/Animal?

Can the landlord or management company refuse consent or would that amount to discrimination?

The outcome here will always depend upon on the strict terms of the covenants and the position that the landlord or management company wishes to adopt, given the actual effect on other residents of permitting a breach by the one occupier. In Thomas-Ashley v Drum Housing Association Ltd [2010] the court accepted that it was reasonable that the landlord refused to allow the disabled tenant to keep an assistance dog given the reasons for the landlord’s objection to the dog and the specific terms of that lease. This was despite the tenant’s clear need for the dog on health grounds and the effect that the refusal would have on the tenant’s ability to remain in the property.

It is worth mentioning here that, as with other types of breach, the owner of the property is almost certainly going to be liable for the breaches of any tenant that they have allowed to occupy.

Accordingly, any tenancy agreement granted should take account of any restrictions contained within the covenants affecting the property in this regard and any prospective tenant made fully aware of relevant restrictions prior to entering into the tenancy.

It is therefore most important that any owner of property to be occupied by a pet owning resident is fully aware of any restriction imposed by the covenants affecting the property before acquiring it and certainly before acquiring a pet.

Equally, a manager of a development should similarly be familiar with any restrictions affecting the occupiers and the extent of those restrictions so that when asked about them pre or post sale, or when consent is requested, the correct approach is taken.

What should you do if there is a breach?

If you are the property owner

If you are purchasing the property and you intend to allow a pet into occupation then clear advice from your solicitors should be obtained before proceeding with that purchase.

If you already own the property, and whether the offending pet is yours or your tenants’, the position should be confirmed and, ideally, consent obtained from the relevant party, landlord or management company, or an acknowledgement that consent is not required.

If agreement cannot be reached in relation to the retention of a pet kept at the property in breach of covenant, then the landlord or management company may be entitled to an injunction requiring the removal of the animal or, in the case of leasehold property, a determination of the breach in contemplation of forfeiture of that lease. In either case, the landlord or management company is likely to be entitled to require the property owner to pay its costs in bringing such an action and those can quickly become substantial.

If you are the landlord or management company

Upon confirmation of your suspicion of the presence of a pet in breach of the terms of the covenants affecting the property, the owner’s account with you should be stopped and immediate advice taken on to what extent the covenants can and should be enforced. It is important to ensure that no consent, implied or expressed, is provided until advice on the issue is obtained and the landlord or management company’s position confirmed.

For more information, please contact Kevin Lever, Solicitor, on 01435 897297 or kevin.lever@kdllaw.com.

Disclaimer

This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above.  The 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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