Tim Jones of the Lamb Building Civil Team discusses the new model tenancy introduced by the Ministry of Housing, Communities and Local Government.

Introduction

Recently, there have been news reports in various media outlets claiming (at least at first glance) that new “rules” have been introduced permitting tenants to keep pets in their properties. For example, the BBC reports that “Renters in England set to be allowed to keep ‘well behaved pets’”, and the Daily Mirror reports that “New rules mean landlords can no longer automatically ban tenants from having pets”. At the risk of disappointing some animal lovers, this is a development that requires some clarity and context!

What has happened?

Pets, particularly dogs, can present a problem for landlords because of widely varying tolerance levels among residents and the potential for damage to the property or for nuisance to be caused, such as fouling. And of course, in some cases, dogs can be dangerous. Many landlords therefore prefer to incorporate terms into tenancy agreements that strictly prohibit the presence of pets (with one common exception being assistance dogs).

On 28 January 2021, the Ministry of Housing, Communities and Local Government published a new “model tenancy” which contains, among other things, the following term (emphasis added):

“Section C: Tenant’s obligations
…
1. USE OF THE PROPERTY, PETS AND PROHIBITED CONDUCT
…
1.5 a Tenant must seek the prior written consent of the Landlord should they wish to keep pets or other animals at the Property. A Landlord must not unreasonably withhold or delay a written request from a Tenant without considering the request on its own merits. The Landlord should accept such a request where they are satisfied the Tenant is a responsible pet owner and the pet is of a kind that is suitable in relation to the nature of the premises at which it will be kept. Consent is deemed to be granted unless the written request is turned down by a Landlord with good reason in writing within 28 days of receiving the request. A Landlord is prohibited from charging a fee to a Tenant who wishes to keep pets or other animals at the Property. Permission may be given on the condition that the Tenant pays an additional reasonable amount towards the deposit, but the deposit must not breach the deposit cap requirements under the Tenant Fees Act 2019.”

The model tenancy agreement contains various Guidance Notes, which provide the following comments on this clause (emphasis added):

“A responsible pet owner will be aware of their responsibilities in making best efforts 2 to ensure their pet does not cause a nuisance to neighbouring households or undue damage to the Property. A landlord should take steps to accommodate written requests from responsible tenants with pets. They should only turn down a request in writing within a 28 day period if there is good reason to do so, such as large pets in smaller properties or flats, or otherwise properties where having a pet could be impractical. Landlord consent is therefore the default position unless otherwise specified in writing by a landlord. If consent is given on the condition that additional deposit is paid by the tenant, the total deposit must not breach the deposit cap introduced under the Tenant Fees Act 2019 and must be protected in an authorised tenancy deposit scheme.”

So what does this mean?

The first point to note is that this model tenancy agreement is merely recommended for use. There is no obligation for landlords or tenants to use it or for its terms to be incorporated into existing tenancies. Therefore, these are not new “rules” being imposed as the aforementioned news reports may suggest. However, parties (particularly landlords) opting to use the new model tenancy agreement as an “off the shelf” set of terms would be well advised to pay attention to its terms before signing.

If the model tenancy agreement is used, then the provisions on pets can be summarised as follows:

1. A tenant who wishes to keep a pet at their flat must ask their landlord in writing.
2. The landlord must consider the request on its own merits.
3. The landlord must grant permission if they are satisfied that:a. The tenant is a responsible pet owner; and
   b. The pet is of a kind that is suitable in relation to the nature of the premises at which it will be kept.
4. If the landlord does not wish to grant permission, then they have to state their refusal in writing within 28 days and give a good reason (such as large pets in smaller properties or flats, or otherwise properties where having a pet could be impractical), failing which permission will be deemed to be granted.

Commentary

Most private sector landlords will be able to make use of the Section 21 no-fault procedure to evict a tenant. However, if the landlord does not wish to go this far, or cannot go this far (due to technical reasons or the type of tenancy), then the landlord will have to either seek an injunction or issue proceedings based on discretionary grounds if they want to compel their tenant to remove a pet from the property. In those circumstances, it will be necessary to (a) prove a breach of the tenancy agreement and (b) demonstrate that the order sought is reasonable/just and convenient, in which case there is potential for arguments about whether a breach was committed or how good the landlord’s reasons for refusing permission were, and a failure to get over the line could mean being stuck with a tenant’s pet for several years. 3

The wording of the model tenancy agreement is curious in that it states that the landlord must grant permission if they are satisfied of the two conditions (responsibility of the pet owner and suitability of the kind of pet) but also states that the landlord may only refuse permission for a “good reason”, which is a different and wider question. The reference to the landlord needing a “good reason” implies that, even if the two conditions mandating the grant of permission are not met, the tenant’s request should nonetheless be granted unless the landlord can think of some other good reason why the request should be refused. Otherwise, there is no point in having this requirement as the landlord could simply refuse permission on the basis that the two conditions were not met.

The reference to “responsible” pet owners is somewhat vague. There is a wide range of opinion on what is and is not acceptable when it comes to looking after pets or tolerating their presence in communal areas, particularly dogs. Additionally, the specific reference to a pet owner being “responsible” arguably fails to take into account the tenant who is perfectly responsible in terms of their intentions but is unable, or later becomes unable, to look after their pet to the degree that they would like – for example, an elderly tenant who later encounters mobility issues or loses the assistance of a younger relative.

Practical points

A landlord may lack sufficient information to determine whether or not the prospective tenant is a responsible pet owner. This difficulty is amplified if negotiations take place prior to entering into a tenancy agreement, or if the landlord does not have experience of looking after such pets themselves. Landlords using the model tenancy agreement may wish to ask tenants for the following:

1. References regarding their pets and how well they look after them.
2. Answers to specific questions about, for example, the type of animal, litter training, breed and the necessity of going out for walks.
3. In addition to the above, an explanation of any disability for which the pet may be needed, such as a guide dog for a blind or partially sighted person. This should be considered even without the model tenancy agreement due to potential Equality Act issues.

Landlords of multiple neighbouring properties should also consider consistency. For example, Tenant A may complain that it is not fair that he cannot have a dog for reason X when Tenant B has a dog despite reason X also applying to her. The potential for such disputes rises when one considers the aforementioned case of a landlord being unable to persuade a court that Tenant B’s dog should be removed, as this may set a precedent requiring the landlord to permit other tenants to have dogs unless they can “distinguish” their case!

Ultimately, the model tenancy agreement is just a template that the parties do not need to use at all. It is therefore open to landlords to tweak its wording to more precisely describe what the tenant is required to do and/or give themselves the ability to grant permission subject to conditions – for example, the landlord may be willing to grant permission for their tenant to keep a dog at the property so long as it does not foul in the communal corridor. Similarly, the landlord may wish to prescribe a list of reasons that will count as “good reasons” for the purpose of rejecting requests to keep pets at the property.

And, as always, keep records of everything!

Written by Tim Jones. All views are my own. The information set out herein is for informational purposes only. Always seek independent legal advice in relation to your case.