The High Court has upheld an injunction demanding the removal of a pet belonging to the Leaseholder, in this case a Yorkshire/Maltese terrier called ‘Vinnie’, from their leasehold flat. The story has captured the attention of the national and local press as it is one of the few times that a “no pets clause” in a residential lease has been litigated to such an extent.
The case involves Mr & Mrs Kuehn (the Leaseholders) who purchased their penthouse flat in Limehouse, East London in 2015. The lease they bought (or more formally, took assignment of) contained a term stating:-
“No dog, bird, cat or other animal or reptile shall be kept in the [Property] without the written consent of [the Management Company].”
Conveyancers will be familiar with this boiler-plate covenant (a term referring to a binding promise in a lease) as it appears in most long residential leases. In this case, rather than requiring the consent of the freeholder, it required the consent of the management company which was operated by the other leaseholders of the building, Victory Place Management Company Ltd (VPMC). Again, this is a common form of the covenant.
The Leaseholder claimed when they bought the property they were told by the estate agent that their pet could stay, this turned out not to be the case.
Upon learning that the Leaseholders had brought their dog into the Property, VPMC obtained an injunction ordering the dog’s removal. In the Leaseholders’ appeal of this injunction, which went before the High Court on 25 January 2018, the issue raised was whether VPMC had compiled with its implied obligation to deal with the Leaseholder’s request reasonably. The argument advanced was that the blanket ‘no pet’ policy amounted to an illegitimate prejudgment of the issue and was unreasonable, using the test laid out in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation.
The High Court ultimately held that VPMC’s policy was not unreasonable or unfair. When considering the Leaseholders’ request, it was quite reasonable to take into account the views of the majority of the other leaseholders in the building (who all supported the ban). VPMC had said that it would have taken into account any pressing medical concerns, as in the case of support/service animals, but this was not the case in this matter. The High Court held that the initial injunction should remain, and the dog should be removed.
In its judgment, the Court decided on the balance of probabilities that …“Wednesbury principles applied to the way in which VPMC exercised its discretion under the Covenant. Otherwise, there would be a risk of tyranny by majority”. This point is of interest as it may have wider applications to similar covenants that have no express qualification on how a freeholder or management company is to exercise its discretion.
For the average flat buyer this case is a harsh reminder that while you may be told one thing about a property, unless it is supported by the lease, it may not be true. If you are buying a leasehold property you should always read and consider the terms of the lease carefully. If you have any enquires, bring them to your solicitor. As the legal fees for this matter have been reported to be in the range of £70,000, it is a point for speculation as to how much could have been saved if the Leaseholders had brought this matter to the attention of their solicitors before they exchanges contracts.
The full judgment of the case, cited as Victory Place Management Company Ltd v Kuehn & Anor (30 January 2018) can be read here.
At Bishop & Sewell, we have over 35 years’ experience in conveyancing, with a particular focus on Landlord & Tenant law. We know what to expect from other solicitors, but we always treat our clients as individuals with their own particular needs and concerns. We provide you with a dedicated conveyancing lawyer to ensure the best level of service from start to finish.
If you are thinking of buying leasehold property or you have any questions regarding your existing property’s covenants, please contact Charlie or call 020 7631 4141 and ask for a member of the Property team or you can email email@example.com
This article is intended as a general summary on the law – no reliance should be placed on it without specific legal advice.