This is the third post looking at the ten most common tenancy agreement breaches by tenants, as identified by Direct Line in their survey, which I discussed in the introduction to this series.
The Direct Line survey gives the percentage of tenants who keep a pet as 18%.
Unfair clauses
The first thing to say is that a pet prohibition clause is subject to the unfair terms regulations (now part of the Consumer Rights Act 2015). These provide that if you are making a prohibition (save for something which is illegal anyway), the clause should provide for the tenant to be able to request permission to do whatever-it-is and that the request should not be unreasonably refused.
Many landlords are unhappy about tenants keeping pets and refuse to allow them as a matter of course. Some of those landlords (without taking legal advice) amend the clause in their tenancy agreement to remove the wording providing for the tenant to apply for permission (which should not be unreasonably refused).
If your landlord has done this, then this renders the clause unfair and unenforceable – meaning that there is nothing, in the tenancy agreement, to stop you keeping a pet.
Which pet?
Even if there is a valid pet prohibition clause, a landlord can only refuse permission to keep a pet if it is reasonable to do so. This will often depend on the pet concerned.
If the animal is a large vigorous dog, the landlord will be quite within his rights to refuse permission, particularly if the property is a small property unsuitable for a large dog. However, if the pet is a small goldfish in a bowl or a stick insect – it is difficult to see how the landlord can reasonably complain about this. So a refusal to grant permission could be ‘unfair’.
Getting permission
Landlords most commonly complain about pets on the basis of
- Potential damage to the property
- Problems if future tenants are allergic to pets
- Fleas (and other pests), and
- Noise
If you can show that none of these will be a problem – for example
- if you pay an extra deposit, maybe a non-refundable deposit to cover the cost of cleaning,
- show that you have taken precautions about fleas and
- that the animal is well behaved in your current home –
you may be able to persuade your landlord to let you keep it.
The consequences of keeping pets without permission
Landlords whose tenants are on assured shorthold tenancies always have the option of refusing to continue the tenancy at the end of the term and evicting you via the section 21 procedure.
If the animal is clearly unsuitable for your property and the tenancy agreement has a valid pet prohibition clause, it is arguable that, even if you have a long fixed term, the landlord would have the right to go to Court to claim a possession order based on your breach of contract (ground 12).
It is less straightforward case for landlords to do this as the ground is not a mandatory one so the Judge would have a discretion. However if your landlord is able to show, for example, that a dog is causing damage to the property and a nuisance to neighbours by constant barking – the Judge is highly likely to make a possession order, suspended so long as you get rid of the dog.
You are also risking your landlord giving a poor reference which will make it difficult for you to rent a property in the future. Most landlords would be unhappy about renting to a tenant who has kept a pet without permission – particularly if it was a pet which caused damage to the property.
Conclusion and advice
You should not keep a pet without permission. Even if your landlord’s pet prohibition clause is invalid, you risk losing your tenancy if he finds out.
The best thing to do is to show the landlord that the pet will not cause any problems, and put them insufficient funds in advance so that they are not out of pocket if there is pet damage when you leave.
As most landlords are unhappy about allowing pets – if you find someone who will allow this, I would advice taking enormous care to be an excellent tenant – so they will not have anything to complain about, and will give you (and the pet) an excellent reference if you need to move.
Note – the Landlord Law pet form (available foc to members of Landlord Law) can be used to take information about the pet and provide permission for the tenant and special clauses to protect the landlord’s position.
Can be used either at the start of the tenancy or later – if the landlord agrees to let the tenant keep a pet mid-term.
As often with claims from the (now defunct) OFT about unfair terms in tenancy agreements, it would be very useful to see an actual court case on the issue. Sometimes it is difficult to understand the basis for the OFT’s guidance.
This includes no-pets clauses in leaseholds.
Couldn’t agree more Romain. I’m constantly searching for case law on CPRs , trading standards services cases, any court action which relates really. Might have found a fee bits and bobs on TPO, PRS etc and some references in deposit ADR but that’s about it. The CMA only seem to get involved in the big stuff (as is their function I guess) so if anyone has knowledge of any case law in any context please point me in the right direction!!
“The Direct Line survey gives the percentage of tenants who keep a pet as 18%.”
That is not what the survey said (according to your blog on the survey).
The survey said “one in 7 tenants breach terms” (paraphrased), then goes on to list the 10 most common breaches with percentages.
1 in 7 is approximately 14% of tenants.
As 18% is quoted for keeping pets, that must mean 18% of those that breach.
Therefore the proportion of all tenants that keep pets without permission, according to the survey, is of the order of 3% (and similarly for the others in the top 10).
The Direct Line survey is just being used as a reason to consider the law relating to the most common tenant breaches. This will not be affected by the precise percentage / proportion. But if my maths are wrong I apologise.
I understand the reason, but when a prestigious publication such as this presents specific figures, others will quote them without checking the source (the cause of urban myths).
A correct statement (IMO) would be “x% of tenants that breach terms of their agreement do Y”, where x is the percentage in the survey.
“The first thing to say is that a pet prohibition clause is subject to the unfair terms regulations (now part of the Consumer Rights Act 2015). These provide that if you are making a prohibition (save for something which is illegal anyway), the clause should provide for the tenant to be able to request permission to do whatever-it-is and that the request should not be unreasonably refused.”
I have looked at the Act and I cannot see anywhere that it says this, or anything like it.
Please can you advise on the part of the Act that applies?
It’s a matter of interpretation. There are thousands, probably millions of different clauses to which the rules can apply so the act cannot give examples of all of them or it would be impossibly long.
There was specific guidance issued by the Office of Fair Trading (as was) in 2005 which I understand is still valid, and accepted by the CMA which has taken over this function of the OFT. In the guidance here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf para 1.46 it says that the the fairness and transparency provisions are effectively the same. (I have not read the document in detail).
It all comes from the ‘fairness test’ s62(4) which says ‘A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.’
So if a tenancy agreement (which is subject to the rules as tenants are deemed to be consumers) is trying to take away rights someone would normally have (such as keep a pet) the contract must do this in a fair way. It is generally accepted that if the clause allows the consumer to request permission which should not be unreasonably refused – this will be fair.
The pet point is well known as there was a famous case (Spanish but these regulations are from an ECC directive so it applies here) where the Judge said that an absolute prohibition on pets had to be unfair as it would prevent a tenant keeping a goldfish in a bowl.
The rule is well established.
Well, an absolute prohibition in England would clearly be in breach of the Allotments Act 1950 for hens & rabbits as well, without any consideration for unfairness needed.
That Act only says that keeping hens and rabbits on land is allowed whatever the lease might say, which is not the same.
“‘A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.’”
Case law on this weighs each word carefully and has pointed out the word ‘significant’. Terms need to completely balanced as long as the imbalance isn’t significant.
In general there is also no requirement to qualify every prohibition by always allowing the other party to request permission to ignore it.
It IS a requirement for pets. So far as other prohibitions are concerned, there is no case law but when drafting tenancies I think it is safer to include it – then the clause cannot be unfair.
A landlord can, of course, delete it, but you then risk the clause being found unfair. Your choice.
If the only reference is the OFT then I don’t think we can say that there is a requirement.
The Spanish case may give a hint, but if it is no binding if it was a ruling by a local court (afaik).
Certainly a best practice.
@Romain The OFT guidance was approved by the CMA. But if you want to leave out the wording in your tenancy agreements that is a matter entirely for you – you may find you don’t have a problem.
If is not however, something I would recommend.