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Can these tenants be forced to re-home their dog?

DogHere is a question to the blog clinic from Jonathan who is a a tenant

We live in a flat and recently got a small dog (‘Tilly’) that I take to visit my father who has dementia. He very rarely speaks now but responds positively to pet therapy.

We obtained permission from the property management in advance, however since then a resident has complained and the management company has told us we have to re-home our dog.

Tilly is a small three year old Norfolk terrier who we specially chose due to their friendly and quite nature. She very rarely barks and we are meticulous in walking her off site so she never fouls within the communal grounds.

Given the statement below from the OFT and the fact that the complaint is wholly unsubstantiated i.e. she has never shown any behaviour that could describe her as being a nuisance, my question is can we be forced to re-home our dog (who I would like to add we have grown to love very much) when there is no grounds to the complaint?

We can’t bear the thought of giving her up but at the same time are a little reluctant to spend 30 odd thousand pounds on stamp and moving costs just because someone has complained about her without providing any reason or justification.

We followed all the correct procedures with the management company and have even agreed not to replace her should the worst happen.

We also invited a member of the residents association to come and meet Tilly and explain she is ‘off site’ during the day and pretty sleeps / dozes all night. We even explained what a joy and benefit she is to my father, which we have a letter from the Alzheimer’s Society supporting this. However within a very short time it was clear that the association were simply anti dog saying they feared an “avalanche” of requests for dogs.

I should also mention that we have seen cats in the windows in some of the flats. Whilst we would never complain about these, it does seem a bit unfair that there is one rule for cats and another for dogs.

Any help and advice would be most gratefully received.

STATEMENT FROM THE OFT:

The Law

It’s also important to remember that the Office of Fair Trading considers a blanket ban on keeping pets in a property to be unfair under the Unfair Terms in Consumer Contracts Regulations 1999. Therefore landlords should not include a “No Pets” clause in their standard tenancy agreement. The Office of Fair Trading believes that a fair clause would require the tenant to get the landlord’s consent before they bring pets into the property but the landlord should not unreasonably withhold their consent. For further information on these regulations please go to www.oft.gov.uk

I should start by saying that I do not generally advise on long lease issues, only on short lets.  However I will make an exception in your case, but please can other readers note that long lease questions will not normally be answered.

The OFT statement

So far as the OFT statement is concerned, you have not given me the wording in your lease which prohibits pets so I cannot really see whether the guidance would apply or not.

There is also a slight question mark over whether the Unfair Terms in Consumer Contracts Regulations will apply to long leases.  We know for sure that they apply to short lets, and I assume that they would also apply to long leases but cannot be sure of this.

Estoppel

However in your case you were relying on the permission given by the management company.  My view is that you can’t be forced to get rid of the dog.  There is a rule in English law known as ‘estoppel’ which says that you can’t stand by and allow someone to do something ‘to their detriment’ and then turn round and deny their right to do it.

So the management company, having agreed to allow you to have a dog, and watched you go out and actually get the dog, cannot (in my view) now force you to get rid of it.

The fact that they have agreed to one tenant keeping a dog does not necessarily mean that they HAVE to agree to everyone else having one.  Your circumstances are different as the dog is used for therapy for your father.

If you had an AST

For the benefit of any assured shorthold tenants reading this, note that your situation is a bit different as an AST landlord always has the right to serve a section 21 notice on a tenant and end the tenancy.  They do not have to give any reason for this.

My advice

It sounds to me that all the management company want to do is avoid trouble.  They don’t really mind you having the dog so long as it does not cause problems with other residents.

So I suggest that you just keep your head down and make sure Tilly is as unobtrusive as possible.  If no-body raises the issue again they may just let it go.

If they persist in asking for the dog to leave, then say that you are entitled to rely on their earlier permission under the legal rule of estoppel, and that it is too late for them to retract their permission now.

You could also point out that the ‘avalanche’ problem is unlikely to occur as you were given special leave to keep Tilly on humanitarian grounds as she is used for medical therapy for your father.  This will not be the case for other residents asking to keep a dog, so your case should not prejudice their right to refuse permission to others (assuming they have the right to refuse permission – per the OFT statement).

If they persist in asking for the dog to go, you could also mention gently that if they do this you may have a claim for compensation and you may also feel compelled to go to the newspapers.  However if they leave you alone you will make sure that Tilly does not cause any problems.

From what I remember of long leases however I don’t really think that there is anything they can do about it, other than bring expensive legal proceedings which I am sure they will not want.

It will be far easier for them to pacify the outraged resident by saying that this is an exceptional case and that no further permission for dogs will be given.

What does anyone else think?

About the author

Tessa Shepperson Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is also a director of Easy Law Training Ltd and Your Law Store. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google

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16 Responses to Can these tenants be forced to re-home their dog?

  1. Most long leases prohibit the keeping of pets. The question for me regarding this situation is why permission was granted by the management company ahead of the dog being purchased and whether since that time the freeholder has also been consulted, said no, but is unaware of the circumstances.

    If Jonathan can reply to my question I may be able to offer some suggestions.

    I understand the concerns of the residents association (who are not the freeholder) but it nevertheless a tricky one.

    Sharon

  2. Jonathan Green says:

    Hello Sharon,

    Thank you for your post. In answer to your question, permission was granted by the Property Management Company and then revoked when a resident complained. They then approached the 10 residents in our appartment block, explaining our circumstances and asking if the residents would support the dog being kept or would they prefer for it to be removed. We do not know the ratio of yes/no responses (other than 4 definately supported re told us) but have since been advised the majority want Tilly re-homed so hence the instruction for us to re-home.

    Our lease states ‘no dog, bird, cat, reptile or other animal shall be kept in the demised premises except with the prior written consent of the manager which consent may be revoked at the discretio of the manager’.

    Kind regards
    Jonathan

  3. Jonathan Green says:

    Just to add Sharon, we assume the Freeholder was not consulted re there was no need to.

    Kind regards
    Jonathan

  4. Looking at the wording of the clause, I am concerned that it does actually provide for permission to be revoked. Unless this could be interpreted as being permission can be revoked before the dog or other animal is purchased.

    There is also the question of other animals (ie the cats) in the block. You may be able to get the support of their owners.

  5. Hi Jonathan,
    The freeholder must always be aware of lease breaches such as keeping pets as he/she/they are responsible for ensuring that the covenants contained within the lease are adhered to, either themselves of via a management company (whatever form that takes).

    I’d therefore advise that you consult the freeholder asap (I am assuming that the freeholder is not deemed ‘absent’ i.e. all attempts to contact him have been to no avail).

    The covenant about not keeping pets is a pretty standard one and indeed such a clause is reflected in my own lease.

    I note that there are a number of cats in the building which may stand you in good stead. I would however advise caution in how you use this knowledge which is why Tessa’s suggestion that you may be able to get them on board should help (and it would be ironic if any of those cat owners stated that they didn’t want a dog on the premises when they have breached their leases with a cat!).

    Again, my advice is to contact the freeholder as the dominant party. There is no guarantee that he/she/they will be amenable but you do have a special case and again, as Tessa suggested, the freeholder could ensure that no other dogs are permitted.

    Please will you keep me posted?

  6. Although I do not myself practice in the area of long leases (and this may be a lesson to me not to publish any more long lease questions!), I still favour the approach of assuming that the landlord is estopped from going back on the initial permission and keeping your head down.

    I don’t really see what the landlord can do to enforce the no pets clause anyway, short of bringing expensive legal action.

    I’ll see if I can get anyone else to comment here.

  7. Note that I have just had a comment via twitter from one of my lawyer colleagues who says that the only way this could be enforced would be by forfeiting the lease, which would be unusual to say the least.

    I would be reluctant to stir things by contacting the freeholder about it, particularly as I suspect that the management company will be acting as agent so would have authority to agree something such as keeping pets.

  8. Tessa
    I can see where you are coming from in terms of Jonathan ‘keeping his head down’ which will of course work if the others who were unhappy about the dog don’t kick up more fuss and accept it.

    However, as I said earlier, the keeping of pets against the terms of the lease is a tricky one.

    Take my block for example.

    I work as the resident manager for the Directors of the company that own our freehold, one such Director being my partner Andy.

    A sub-tentant brought a rather large dog with him when he was housed here by another local authority under one of their PRS housing access schemes (we are a private block).

    Of course, when we found out who the tenant’s landlord was (the flat was put into auction whilst he was in situ) I requested that the dog be removed as it was in breach of the lease and in turn, the tenancy agreement.

    The landlord has yet to do anything and the dog could easily be removed by the tenant as as it apparently belongs to a family member, but it is well looked after, doesn’t foul the communal area and hardly ever barks. Therefore rather than advising the Directors to embark on (expensive) forfeiture for such a trivial matter in the great scheme of things, I’m sticking with getting the landlord to deal with it.

    We may have had to issue the threat of forfeiture if the dog was troublesome via a letter from our company solicitor but fortunately this has not happened.

    Neither has an avalance of dog requests but if anyone asks they will be refused and if they ask ‘why has he got one’ then they will be told that the dog was a ‘fait accompli’ and we knew nothing about it until it appeared. The landlord is dealing with it.

    I hope this all helps and I wish you the best of luck in keeping Tilly!

    Good Luck

    Sharon

  9. David says:

    The starting point would be to look at the terms of the original agreement granting permission. If unfettered I think the managing agent would need to show a good reason to withdraw. If now they want to enforce they can either apply to the County Court for a declaration or the First Tier Tribunal (property chamber). This would be a first step to forfeiture. Practically I tend to agree with Tessa and keep your head down and see if anyone does anything. Sadly this is the downside of living in leasehold property.

  10. Many thanks David and to Sharon for your comments.

  11. Jonathan Green says:

    Thank you Tessa, Sharon and David for your posts. Your help and advice is much appreciated.

    Could I ask – if the management company pursued the avenue of forfeiture, would they be required to substantiate a complaint i.e. excessive barking, fouling, aggressive behaviour etc?

    Thanks again and congratulations on a quality blog/platform. Accessible and knowledgable advice can sometimes be difficult to find on the net!

    Best wishes,

    Jonathan

  12. Industry Observer says:

    I am very interested in this article as by coincidence I currently have an enquiry from a client along similar lines and where a local Management Committee has adopted an ANIMAL CONSENT POLICY which can only fairly be described as Draconian.

    Can I ask Jonathan through you Tessa whether the original consent sought and granted was from the Freeholder or this Management C’ttee? There is reference to it in the thread but I wonder just how much authority has been delegated to this Committee?

    And in the light of his answer if it was the C’ttee could he not go over their heads to the Freeeholder anyway, as I assume there is no block management agent?

    There is certainly no likelihood of forfeiture, ot in the 21st century unless the lease runs down to zero years outstanding!!!

    The clause as stated I would suggest would fall foul of UCT provisions.

  13. Jonathan says:

    Hi there, in answer to the last post – permission was sought and granted by the property management company. It is my understanding, the freeholder (the original developer) has nothing to do with the running or administration of the estate and all affairs are handled by the management company.

    I can understand why it has been suggested in some previous posts to contact the freeholder and this is certainly a route we will not ignore, however we very much anticipate the matter we would be referred straight back to the management company / agent.

    Any other queries, please don’t hesitate to let me know.

    Thank you for your post.

    Jonathan

  14. Industry Observer says:

    Jonathan
    The trouble with leasehold is that there are a variety of legal and informal structures. For example you could have a block which has a freeholder who lets the whole block to a management company who then run the block though an agent!!

    But what matters is the lease as it will always be at the top of any decisions on who can do what or cannot. It will always be the lease as this is the agreement between whomever granted the lease (Freeholder) and the lessee (owner)about what they can and cannot do.

    This cannot be changed without the agreement of the parties to the lease. As far as I am aware this cannot even be changed by a decision of any management group without the consent of individual parties.

    Informal committees have no power unless granted to them in the lease. Even management companies have no power unless granted within the lease (ie they cannot do things the lease does not allow, not that their instruction needs to be in the lease).

    These management companies are often fine, do a good job and sort issues that otherwise would never get sorted. On the other hand they are sometimes run by one or two individuals who treat the thing like their own private fiefdom and as though they own the block, have the final say, can speak for everyone and so on.This of course is so they can have things the way they want them in their block.

    They do not – so do not let them push you around they almost 100% certainly do not have the power and legal capacity to do most of the things they threaten. What they can do is organise the gardening, cleaning of communal spaces and make sure occupiers park in the right space and use the right bin.

  15. JamieT says:

    As mentioned it is increasingly popular for the managing agents to ask the resident to sign a ‘Pet Policy’ setting out the conditons under which pets would be allowed. Did this happen in this case?

    Similar policies I have seen specifically state that residents may have to get rid of their pet if the conditions are breached.

    If the conditons were breached would it be possible to seek specific performance under this contract instead of forfeiture of the lease?

  16. Jonathan says:

    Hi Jamie,

    There is no specific ‘pet policy’ other than the clause stated above in the lease.

    Indeed, we would be happy if there was such a policy as then at least we would have some clear conditions that, if breached, we could make some understanding of the complaint.

    In our case we have simply been told to re-home our dog without any reason for the complaint.




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