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We all know that pets are for life – and not just for Christmas.

One piece of post-Christmas news is the revelation that the Government is seeking to put pressure on landlords to allow responsible tenants to keep pets.

A statement from the Ministry of Housing, Communities and Local Government said that total bans on pets should only be implemented where there are good reasons, such as in smaller properties or flats where owning certain pets may be impractical.

The Housing Secretary, Robert Jenrick, is calling upon landlords to make it easier for responsible tenants to have well behaved pets in their homes. The rationale behind this is that those who are renting should be able to enjoy the happiness and wellbeing that having a pet can bring to their lives. Many renters are currently being denied this with some having to give up having a pet altogether or being forced to move.

The Government’s model tenancy agreement for renters – which forms the basis of the tenancy agreements used by many letting agents – is set to be revised this year. One of the proposed revisions is to remove restrictions on well behaved pets as part of the general move to make residential lettings more tenant-friendly and for renting to be regarded as more of a long term option.

The rented sector is growing with more and more individuals and families renting properties as opposed to owning them.  Though tax squeezes have seen many individual Buy to Let landlords withdraw from the market, institutional build to rent investment schemes are booming.

Many build to rent schemes are actively pursuing longer term renters as tenants and therefore the landlords of these schemes are keen to implement tenant friendly letting arrangements.

It is increasingly common for these new builds to have a pet policy in place which is incorporated within the letting agreement. This permits tenants to keep certain pets in their flat under certain conditions. A policy will contain detailed circumstances in which a pet may need to be removed, meaning that a renter may no longer keep the pet in his flat.

Clarity on such circumstances reduces the subjectivity that surrounds pet clauses. A landlord usually has absolute discretion to withdraw consent for a pet – with no reference to “reasonableness”.

It is worth noting that even an impeccably behaved pet is capable of causing damage to a property. The Government’s statement concedes that there should be a balance between responsible pet owners not being penalised and landlords’ properties being protected from damage by badly behaved pets.

However this conflicts with the fact that deposits paid by tenants are capped to 5 weeks’ rent (where the annual rent is less than £50,000). That sum could well be insufficient to cover damage to a property caused by a pet. This leaves a landlord with greater exposure to the risk that allowing a pet to reside in its property – and cause damage to it beyond the reasonable wear and tear to be expected from a non-pet owning tenant – will leave it out of pocket.

Jenrick says that the Government will be listening to both tenants and landlords to see what more can be done to encourage landlords to allow pets in their properties.

But logic dictates that ultimately tenants will have to pay for the privilege of keeping a pet. It should seem reasonable for landlords to ask for an additional deposit commensurate with the risk of damage to its property. At present that is not allowed due to the deposit cap. The only other recourse is for landlords to charge premium rents for allowing tenants to keep a pet.

So Jenrick is going to have to listen hard to the concerns of landlords in order to come up with a solution that both protects landlords’ properties and allows a tenant to have a pet without having to pay a premium.

References to “landlord” in the context of Jenrick’s statement is to landlords under short term lettings such as an Assured Shorthold Tenancy where the property concerned could be a flat or a house. It does not extend to long leases. Long leaseholders who want to keep pets in their flats still face the uncertain situation as to whether their pet is going to be allowed to stay in their flat for the duration of their ownership.

Where a flat lease is silent as to whether pets may be kept in a flat it can be inferred that pets are allowed.

More commonly, leases will contain specific clauses relating to pets. These often provide that pets may be allowed at the sole discretion of the landlord. However the landlord’s consent may be withdrawn – usually in the event of the pet creating a nuisance or annoyance.

Irrespective of any express covenant or regulation about keeping a pet in the flat, there is nearly always a covenant given by the tenant not to cause a nuisance or annoyance to tenants or occupiers of other flats in the building.

This is linked to the landlord’s covenant for quiet enjoyment. This obligation may be being interpreted rather literally here but it has been held in certain cases that quiet enjoyment is just that – being allowed to enjoy peace and quiet in your flat and without disturbance from a noisy or unruly animal.

The difficult thing to determine is what constitutes a nuisance or annoyance – perpetual dog barking or the occasional sounds of light scratching by a cat. The element of “reasonableness” is usually absent from pet clauses which are further compounded by the absence of objectivity.

The majority of leases will contain an obligation on the landlord to enforce covenants given by the tenants of other long leases flats in the building. This is a difficult one for landlords where they have to enforce a clause which already lacks objectivity.

The withdrawal of consent for a pet can be devastating for the flat owner and it can be distressing for the animal to be parted from its owner. Conversely it can be stressful listening to incessant barking from an incarcerated dog. A balance needs to be found here but, whilst this remains a subjective issue, that may be hard.

If you have any questions regarding this topic, please contact Rosie McCormick Paice or any other member of the Property team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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