Crying ‘fowl' over pet definitions!

Owners, leaseholders or occupiers are understandably concerned if there is the potential for pets to cause damage or a nuisance to other tenants. And they often seek clarity around the implications, conditions or exceptions that are deemed acceptable.
 
Most residential leases will include some form of restriction for keeping pets, whether this be from a prescribed list of animals permitted, obtaining written consent or an absolute prohibition on keeping animals in the property at all. As well as possible damage or disturbance, such restrictions also ensure that the property itself, as well as the wider estate, are kept in a reasonable condition.  As such it can be something of a minefield for landlord and management companies to reach the right conclusion. So let’s look at recent case laws to identify and discuss the key definitions and caveats which determine levels of consent.
 
A changing ‘pecking order’ of pets? 
The term “pet” generally refers to “a domestic or tamed animal kept for companionship or pleasure” and most people would generally think of dogs and cats to hamsters and budgerigars. However, with the genre of pets expanding to include more exotic (and in some cases livestock), landlords are having to consider such queries as: “is a chicken a pet?”  
 
This brings a host of additional complications – and implications. Taking chickens as an example, the RSPCA recommend registering a pet chicken on the Great Britain Poultry Register for receiving guidance on disease control, indoor parasite removal through to providing environmental recommendations for the chicken’s welfare. This included that they have access to outdoor roaming space and dry soil where they can dustbathe and forage. Not exactly “Polly on a perch” in the flat next door!
 
More than a ‘poultry' matter
The first point of call, as always, will be the terms of the lease, with a key question being whether there are any restrictions on keeping animals at the property and, if so, can consent be provided? 
 
Considering restriction - whereby consent must be obtained first
Where written consent needs to be obtained before a leaseholder is permitted to keep a pet, including specific types of pet, such consent may be required from either the landlord or the management company, depending on the terms of the lease. Such consent should not be “unreasonably withheld”. 
 
This issue was considered in the case of Victory Place Management Company Limited (“VPMC”) v Kuehn and Kuehn. The shareholders for VPMC were the lessees of the development who had a policy of banning dogs from the development unless special circumstances existed. Mr and Mrs Kuehn wished to keep their terrier dog and the dispute ended up before the Court of Appeal. After considering the facts in the case, the court held that, such a blanket policy was not unreasonable in this case because VPMC was a management company run by the lessees and was carrying out the wishes of the majority of lessees to not allow pets.
 
Whilst this would not allow VPMC to act unreasonably or irrationally, that factor demonstrated that VPMC had reasonably taken into consideration the majority of lessees’ views when determining such a policy. 
 
It, therefore, appears that the courts will imply a term that the discretion to allow a tenant to keep a pet in premises must be exercised reasonably and that a landlord or management company must be able to demonstrate that they have adopted a reasonable process to arrive at a reasonable outcome. 
 
What will be deemed reasonable will be considered on a case by case basis (given additional hygiene, physical and environmental factors in keeping exotic animals, for example) but keeping these requirements in mind when considering such application will assist any landlord or management company in defending an allegations of unreasonableness or discriminating against “the pet chicken”. 
 
Considering Absolute Prohibitions - where there is no provision for a landlord to consent 
When there is an absolute prohibition on keeping a pet, a leaseholder may still request consent.
 
Alternatively, a landlord may become aware of a breach and make the decision not to enforce the covenants, thus waiving the breach in any event. The key consideration here is not just the reasonableness of granting/withholding consent, but also whether providing consent would impact upon a landlord’s obligation to enforce tenants’ covenants at the request of other tenants.  
 
This has been seen recently in the case of Duval v 11–13 Randolph Crescent Ltd,  where the Court of Appeal held that if a landlord consented to or waived the breach of covenant, then in turn, the landlord would be in breach of its obligations to enforce the lease covenants at the request of another tenant in the building. 
 
So is a chicken a pet? In light of the review it can be… as long as the lease recognises it (or other animal classifications) as such; or subsequent reasoned consent is given to allow the animal as a pet following appropriate consideration of the covenants and potential impacts upon other easeholders and the property.   
 
Jennifer Hollyoak is a solicitor at JB Leitch

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