9 March 2021
Residential and rural update – March 2021 – 3 of 5 Insights
Opening the leasehold door to man's best friend has long been a bone of contention in the landlord/tenant relationship, however, this last year of lockdown and the seemingly inexorable shift to home working is snapping at the heels of standard practice. To read the headlines, it's only a matter of time before it's raining cats and dogs – but is the bark of those demanding change worse than their bite?
Generally speaking, long residential leaseholds prohibit the keeping of pets. The pitter patter of paws and claws on wooden floorboards, not to mention the threat of starlight barking, allergy exacerbation, chewed carpets or damage in common parts, is usually enough to threaten peaceful coexistence in a multi-tenanted block. Restrictive tenant covenants therefore understand that noise might well constitute actionable nuisance, and mutual enforceability clauses put the onus on landlords to ensure everyone in a multi-let abides by the same rules. It only takes one neighbour to notice a lease breach and the pooch will get its marching orders. In the worst case scenario, the tenant could follow.
But this situation is by no means the end of the story. In the real world, landlords know that many tenants will take their chances, trading the immediate benefit of creature comforts against potential future action over lease breach. In the last few years, many have also faced pressure to welcome so-called emotional support pets, despite general prohibitions. Add to this the impact COVID-19 has had on flat living – particularly in terms of social isolation in lockdown and the need to rouse for daily exercise – and it's not surprising that the pro-pet lobby have been increasingly vocal in calling for a more fundamental change in practice.
Conservative MP Andrew Rosindell introduced a private member's bill (the Dogs and Domestic Animals (Accommodation and Protection) Bill) which passed its first reading last October. This bill, also known as "Jasmine's Law" after its furry Weimaraner namesake, seeks to get rid of no pet tenancy clauses altogether, making them unlawful and thereby ensuring "a pet in every home". At least one London Mayoral election candidate, the independent Farah London, is also campaigning on a platform of private, pet-friendly tenancies.
Perhaps reluctant to have the tail wag the dog, the Ministry for Housing, Communities and Local Government (MHCLG) has now released an updated model tenancy agreement, designed for new lets of more than two years. Published on 28 January 2021, this includes a clause that puts the onus on a landlord to show, when asked for prior written consent on the matter, that it is not unreasonably withholding or delaying access to a pet, and is "considering the request on its own merits." This turns the standard approach on its head: landlord consent is the default position. Drag your heels for 28 days and consent is assumed.
Adoption of this model agreement remains voluntary, and it does attempt to strike a balance between pet lovers and their landlords. The landlord need permit the pet only when "satisfied the Tenant is a responsible pet owner". That said, aside from the obvious challenge of correctly judging the tenant to be just that before the pet has even materialised, the agreement does not really deal with what happens if the fears about introducing animals are manifest. It allows for a deposit top up (subject to the caps in Tenant Fees Act 2019) but does not detail how withdrawals should work when consent for the pet was forthcoming and damage or nuisance follows. It leaves more detailed covenants entirely up to landlord (albeit with the warning about how unfair terms are unenforceable).
But what is really unfair regarding control over pets? Landlords may judge a pet's suitability (gauging, for example, its size) but where is the benchmark on this and the impact on others? Having effectively granted consent to a hypoallergenic hairless Sphynx cat, can the tenant later introduce a long-haired Afghan hound? Arguments on how much nuisance may be created seem inevitable.
While the extreme approach of Rosindell and Farah London is unlikely to gain serious traction, is MHCLG barking up the wrong tree therefore by hoping the voluntary adoption of a tenancy agreement will put an end to the debate? Probably. Landlords will just sidestep the argument by ignoring the model agreement. London has done the maths; she claims that in 2019 only 8.5% of the capital's private rental market (serving just shy of three million people) is genuinely "pet friendly" and it is highly unlikely landlords of the remaining 91.5% will now risk the doghouse for failing to admit any particular pet – so no need to take an umbrella out just yet.
To discuss the issues raised in this article in more detail, please reach out to a member of our Residential & Rural team.
by Lisa Bevan
by Lisa Bevan