Katie Edwards, Associate at specialist property solicitors JB Leitch, considers the issue of the prohibition of pets under long leases and whether a landlord can refuse consent for those requiring assistance dogs.
Many modern leases contain an absolute prohibition on keeping pets. Consequentially, the beneficiary of such a covenant, usually a landlord or management company, can refuse any application, however reasonable, from a lessee, for permission to keep a pet at the premises. The position is absolute and abundantly clear.
Even in leases whereby a pet is permitted to be kept with the consent of the landlord or management company, the right may be refused so long as the decision-making process used was reasonable.
Detailed consideration was given in Victory Place Management Company Ltd v Kuehn and another [2018] EWHC 132 (Ch) which concerned a gated residential development of flats in London.
The lease contained a covenant preventing the keeping of pets in the property without the management company’s consent. The lessees applied for permission to keep their dog at the property, which was ultimately refused.
In correspondence, the management company stated that it would consider special circumstances, such as the need for a guide dog.
Whilst the lessees mentioned medical issues, they were unable to supply documentary evidence to support that claim.
The claimant commenced proceedings against the defendants. Accordingly, the County Court gave judgment in favour of the claimant and granted an injunction to the claimant, requiring the defendants to remove the dog from the premises. Upon appeal, the lessees’ case was dismissed.
The context was crucial and in the present case it had been that the claimant had been carrying out the wishes of the majority of the lessees at the development in making clear that it would enforce a ‘no pets’ rule. Further, the policy that requests would be refused, save in special or exceptional circumstances, was neither unreasonable nor irrational.
Accordingly, where a long lease of a flat which contains an absolute prohibition on keeping pets is to be assigned to a blind, or otherwise registered disabled, person who requires a guide dog, or other assistance dog, what is the legal position?
In This Circumstance, Can a Landlord Refuse Consent?
In brief, the answer is no and the legal reasoning has several limbs. Primarily, guide dogs, and other assistance dogs, such as hearing dogs for the deaf, are recognised as working animals, as opposed to pets, and are relied on by their owners for independent living and mobility.
The training that these dogs receive and the required on-going monitoring of their health and wellbeing means that they are less likely to be a problem to the landlord or other tenants.
Owing to their vocational existence, they are under the close supervision and control of their owner at all times.
They are trained not to bother other people, not to climb up on furniture and not to cause damage to a property or its contents or create a mess in a property.
More pertinently, disabled people, including guide dog owners and other blind or partially sighted people, have important rights under the Equality Act 2010, which consolidates and replaces previous discrimination legislation including Disability Discrimination Act 1995 in England, Wales and Scotland.
The EA 2010 entitles blind and partially sighted people to the same rights in relation to renting or buying a property as anyone else. Accordingly, it is unlawful for landlords to discriminate against disabled people when renting or selling a property to them.
Furthermore, landlords have a duty to make reasonable adjustments in amending their ‘no dogs’ policy, as guide or assistance dogs are designated not as pets but as mobility aids under EA 2010.
A term prohibiting the keeping of pets will, consequentially, not prevent a tenant keeping a guide or other assistance dog, which, as set out above, is not a pet. Importantly, any contractual provision purporting to prohibit the keeping of an assistance dog is likely to be unenforceable under EA 2010 and any landlord is highly likely to be unfavourably dealt with by a judge.
Is a Lease Variation Therefore Required for a Guide, or Assistance Dog, to Remain at a Premises?
As guide dogs are not pets, there is no requirement to vary the terms of a lease to permit the lessee to keep one. If the landlord could not enforce a covenant against keeping pets against a tenant who keeps a guide dog in the premises, the other tenants could equally not enforce the covenant or compel the landlord to enforce. As a result, if the landlord did agree to enter into a deed of variation to exclude guide dogs and other assistance dogs from the general prohibition, it is very unlikely that the other tenants, who are given by their leases the right to enforce the covenants contained in the leases, could do so in order to prevent the blind or partially sighted tenant being able to keep their guide dog in the flat.
In conclusion, even the most stringent of covenants contained within a long lease will fail to prohibit a registered blind lessee from keeping their guide dog within their flat. Generally, a landlord ought to have a well-considered consent process for when applications are received from lessees to keep pets. Absolute prohibitions operate to give clarity when contained within leases and a comprehensive consent process should cover qualified covenants.
Katie Edwards is an Associate at JB Leitch Ltd; specialists in property dispute resolution. You can contact the team via [email protected] or 0151 708 2250.
