Eviction and dogs:
There has been an interesting eviction case reported recently on the application of the Disability Discrimination Act 1995 (DDA95) to eviction proceedings under section 21 where the tenant claimed that the landlord was in breach of the DDA95 by refusing to allow her to keep a dog. The case is Thomas-Ashley v Drum Housing Association Ltd and is reported in some detail on the Nearly Legal blog.
The dog in question is a Jack Russell/Border Collie cross, called Alfie. So far as I can see, the essential elements of the story are as follows:
- Ms Thomas-Ashley suffered from Bipolar Mood Disorder (a recognised disability) and had previously been admitted to hospital for this
- She was separated from her husband who lived in the former matrimonial home with the children of the family
- In June 2006 she took over the tenancy of a one bedroom flat from the Drum Housing Association
- In October 2007 her former husband said that her daughters dog, Alfie, could no longer stay with them.
- Ms Thomas-Ashley asked permission from her landlord to keep the dog at the property
- This was refused as there was a no pets policy. Her landlord was a lessee and the head lease also did not permit pets. There was a list of dogs for which permission could be granted, but this did not include Jack Russell/Border Collie cross dogs.
- The dog moved in anyway.
- Ms Thomas-Ashley found that caring for the dog dramatically improved her mental condition,
- However the dog disturbed neighbours by barking and on 4 February 2008 the head lessors agent wrote and asked her to re-house it.
- Ms Thomas-Ashley took no notice and the dog remained
- A section 21 notice was served and proceedings for possession issued in due course. An order for possession was made in the first instance.
- Ms Thomas-Ashley appealed under the DDA95.
The appeal was refused. So far as the position under the DDA95 is concerned the court said:
Section 24A introduced into the 1995 Act an obligation on the controller of premises (which the respondents undoubtedly are) not to discriminate against a disabled person to whom the premises are let. Again it is indisputable that the appellant is such a person. Discrimination is defined, for these purposes, as a failure to comply with the duty imposed under section 24D when the respondents cannot show their failure was justified
The reasons why the appeal was dismissed were basically as follows:
- “when she moved in she did not need a dog in order to live at the premises”.
- “in reality it was companionship of the dog that she enjoyed, rather than it being a physically necessity (for example as it would be with a guide dog for a blind person)”
- The head lessors had refused to allow permission and had threatened to forfeit the lease if Alfie continued living in the premises
- This was because Alfie was not one of their permitted breeds of dogs and his persistent barking was disturbing the neighbours
- It was not reasonable to expect the landlords to allow the dog when this would result in their lease being forfeited
There is a nice summary at the end of the report:
In Lewisham LBC v Malcolm [2008] [reported by us here] Lord Neuberger of Abbotsbury pointed out at paragraph 148 that there was much to be said as a matter of general policy for the view that the court should lean in favour of an interpretation which assists the beneficiaries of anti-discrimination legislation but that the legitimate interests of those whose common law rights are affected by the legislation have also to be borne in mind.
Whilst one inevitably has sympathy for the predicament in which the appellant finds herself this is not a case where the interpretation of the legislation can be stretched in order to assist her. Its meaning is clear.
In my judgment the appellant fails on the facts found by the judge both to show that the “no animals” term discriminated against her on the grounds of her disability and that if it did there was nothing the respondents could reasonably have done about it. The “no animals” provision was in the appellant’s tenancy agreement and the head lease for a purpose.
[The housing associations barrister’s] argument means that the appellant’s Bipolar disorder effectively trumps her contractual agreement with the respondents and the respondents’ agreement with the head lessor as well as the interests of the other occupiers of Itchen Court. I cannot accept that on the facts found by the judge this is so. Accordingly I would dismiss the appeal.
However, landlords take note. If it had been a proper guide dog, and if the landlord had not been in danger of having his lease forfeited, the decision could well have been different.
A very interesting read, this case also goes to show that if you work within the boundaries of the lease then the law is on your side.
No doubt that because everthing was put in writing it meant the judge could see clear indication that the freeholder was doing things by the book. Any communication to between tenants & landlords should always be backed up in writing, its good house keeping!
I do think that assuming the lease is not a problem that landlords should consider pets in general as they can be less hassle than our 2 legged friends.
Winchester Lettings supports the letswithpets campaign from the Dogs Trust they give a landlord, tenant, & lettings agents really useful information when considering a pet.
I agree, landlords should consider allowing pets if they can, although I understand that this particular dog did disturb the neigbhours by its barking.
On Landlord law we have a special tenancy agreement specifically for letting to tenants with pets (with special terms and conditions). There is an article with further information which you can download from here.
This was largely inspired by the excellent information provided by the Dogs Trust (our charity of the month last August).
I have seen a big change in social lettings agreements on the ‘No Pets’ rule. In the early days of unfair terms and conditions in tenancy agreements being issued I came across a council based in the North West who chose an approach of having lists of several columns length of animals that are and arent allowed. The most priceless entry being snakes, that are permissable as long as they are no more than 3 feet long. I am not joking either. I dont know if the council employed a snake-measurer to deal with enforcement. Hopefully the council in question have calmed down a bit since. Anyone nkow who they are? I cant remember myself.
Thats brilliant! Does anyone else have any bonkers pets in property related stories?
Well I did once encounter a couple who moved into a property with a dog only for the landlord to protest that they hadnt told him about it. They counter-protested that there was no prohibition clause in the contract so he drew up a separate attachment contract for the dog, written as if it was to the dog itself, prohibiting it from jumping up at the window or barking at passers by.
On a different note but still on the subject of daft clauses I was once presnted with a tenancy agreement whose wording had been passed down the years and was so old it had a clause prohibiting singing and bizarrely, said that tenants were not allowed to use a pianola on the premises
It isn’t so very long ago that we were using a tenancy which forbade the beating of carpets out of windows. It was an AST, so must have been written in the 90s.
I’d be annoyed as a landlord because she blatantly ignored the “no pets” policy. This case has nothing to do with her disability in my opinion, that’s just an unfortunate condition she has, which she tried to use a justification.
Totally agree with:
“in reality it was companionship of the dog that she enjoyed, rather than it being a physically necessity (for example as it would be with a guide dog for a blind person)”
The real point is, she completely ignored the terms in the agreement. Moreover, she failed to take action even when she was informed that the dog was disturbing the peace, while knowing that the dog wasn’t even meant to be there in the first place!!
Thank God the appeal was refused. Justice is served :)
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Thanks for your comments, everyone. A lot of tenancy agreements say the tenant should not hold any auctions – which I always thought was a bit unlikely – or is it? Was there a time when tenant auctions were a real problem?
I agree, The Landlord, that the court came to the right decision in this case. But I do think it is a shame that so few landlords allow pets.
I think that this case is a very good example of why Landlords don’t allow pets!
I don’t see this as a triumph for the law in any way. A lot of money that could have been spent building housing for people who need homes has been spent in several law courts instead.
She deliberately set out to break her tenancy agreement, and then tried to use the legal system’s shoddiness to get away with it, and people who need homes are paying for her extravagance.
For a country where there’s clearly a passion for dogs, ‘no dog’ clauses in tenancy agreements are extremely cynical and discriminatory. I understand that there’s probably a lot of people who are not responsible pet owners. That is not my case. I have always taken good care of my cat and my dog, taking them to the vet and making sure they had their medicines against fleas and worms. I always professionally cleaned the carpets on the properties I have stayed every 6 months. I need to move home very soon, as I am pregnant, and I cannot seem to find a place that accepts pets! All estate agents I talk to shut the door on my face and never get back to me. Regardless of my references and my willingness to pay more of deposit, I am struggling!! It has been really tough – I have no money to buy house so I can only let. Because of this situation I am currently stranded in a studio flat with my husband and my pets, with a child on the way. I think it is really unfair that the UK allows such clauses to exist. In Portugal having a pet or two in a rented accommodation is allowed, making pet owners life so much easier… The ‘no pets’ clause is ridiculous, old-fashioned, and in my view, extremely discriminatory.
Hi Lenor
Some dogs are destructive and many landlords are unhappy about allowing pets, particuarly dogs, as they are worried that they will damage the property. However there has been a movement recently, started by the Dogs Trust, to encourage landlords to allow pets. Inspired by this, my online service has a special tenancy agreemnet that can be used when the tenant is allowed have a pet.
You can read about this here http://www.landlordlawblog.co.uk/2009/06/03/letting-to-tenants-with-pets/