UK: Pets In Flats – A Question Of Consent

Last Updated: 11 July 2018
Article by Sarah Reynolds

The vast majority of long residential leases contain a raft of obligations regulating the use of the property. One such common regulation is the keeping of pets. Some leases contain an absolute prohibition on pets, whilst others allow pets to be kept but only with the prior written consent of usually either the landlord or management company. If the latter, is the landlord or management company then duty bound to consider and respond to said request reasonably? Such point was considered in the recent High Court case of Victory Place Management Company Limited v Kuehn & Anor [2018] EWHC 132 (Ch).

Facts

The proceedings involved an appeal by Mr and Mrs Kuehn against an injunction in the County Court requiring the removal of their beloved 5 year old Yorkshire cross Maltese Terrier, Vinnie, from a £1 million apartment which they had recently purchased and then refurbished in a gated development in Limehouse, East London. The management company of the development, Victory Place Management Company (VPMC), comprised of an elected board of directors who were themselves leaseholders.

Each lease on the development contained the following covenant:-

"No dog bird cat or other animal or reptile shall be kept in the [property] without the written consent of [VPMC]".

Prior to the purchase, the Kuehns had been made aware of the fact that VPMC operated a strict "no pets" policy, albeit with an acknowledgement that exceptions may be made in certain circumstances – for example a guide dog or for medical needs. Following their application for consent to let Vinnie live at the property, the Kuehns were given the opportunity to provide evidence of any such special circumstances, but failed to do so, arguing only that Vinnie was "part of the family unit". VPMC therefore refused the request.

At first instance, the Judge found in favour of VPMC, stating that the policy reflected the majority view of the lessees who had voted at a board meeting on the basis of concerns about dogs barking, chewing or defecating in the common areas. Unfortunately the Kuehns' request was based upon nothing more than the love of their dog. The Kuehns appealed.

Appeal

The Kuehns' main point of appeal was based on the approach of the County Court in considering how VPMC had exercised its discretion in dealing with their request. They argued that VPMC had an implied obligation to deal with such request reasonably and that VPMC's had already decided to reject the application without considering its merits. In other words, the refusal by VPMC was a "fait accompli" – the "no pets" policy was an unlawful predetermination to reach a particular decision.

Furthermore, the approach was "Wednesbury unreasonable" – i.e. a decision that is considered to be one that no reasonable person acting reasonably could have made (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The Wednesbury principle established the obligation to take into account only relevant considerations whilst ignoring irrelevant ones in order to preclude an irrational conclusion. Otherwise there would be the risk of tyranny by the majority predetermining the outcome of all applications.

VPMC argued that an approach where no dogs are allowed save in special circumstances was a reasonable one.

The appeal was dismissed with the High Court ruling on a number of points including the following:

  • VPMC's "no pets" policy was not irrational or unreasonable and had been drawn up fairly by consulting with the other leaseholders and simply going along with the majority view – i.e. not to allow pets.
  • VPMC had shown on more than one occasion that it was willing to consider special circumstances such as medical evidence which might have justified the Kuehns keeping Vinnie in the flat but no such evidence had been provided.
  • If the Kuehns had demonstrated a particular special circumstance then there was every chance that the VPMC board would have adopted an alternative approach. It could not therefore be said that the board had reached a final and irreversible decision from the outset.

Comment

Personal views on the matter aside, the decision serves as an interesting insight for landlords and management companies when it comes to interpreting tenant's covenants in long leases, and also how the courts will approach the decisions those landlords and management companies make on considering consent requests. Providing any particular policy is reasonable and rational – and particularly if it was introduced with specific consultation with the leaseholders of the block themselves – then the request will have been dealt with reasonably. As the Court itself made clear, these are "not high thresholds to meet".

The Labour Party has recently announced a new draft policy on the rights of tenants keeping pets which, if ever passed into law, could create a statutory right to keep a pet in a flat and thus override the pre-existing landlord and tenant relationship under a tenancy agreement or long lease. Until then, however, buyers of long leasehold flats should make all necessary enquiries prior to purchase in order to avoid being caught by any lease imposed rules and regulations pertaining to their new home.

This article first appeared in Property Investor News.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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