What is all the squawking with Pets and Tenancy Agreements?
With calls long outstanding for renters to have a right to keep pets in their homes, have the Government now found a route, via an update to the model tenancy agreement, through which the concerns of landlords can be met, and tenants can celebrate in being granted a new right?
Just before Christmas I mentioned that the Government was making moves toward enabling renters the opportunity to have pets permitted under the terms of their tenancy agreements – it seems the first step has now been taken. The Housing Secretary has updated the model Assured Shorthold Tenancy Agreement to include a standard provision relating to pets. But how does this stand up to the reality of the demands in the rental sector, and was it really always as simple as this to achieve?
What the Government proposes about Pets Tenancy Agreements
The proposed clause is set out at paragraph C3.5 of the model Assured Shorthold Tenancy Agreement (although labelled as 1.5 in the third paragraph “1” in section C if you are trying to find it (or maybe just try page 29)):
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(see section B10).
And the Guidance for those feeling a bit lost:
Clause C3.5 prohibits a landlord from exercising a blanket ban on pets. A responsible pet owner will be aware of their responsibilities in making best efforts 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.
Any individual who has drafted a clause from scratch (excuse the pun (I avoided a ‘pet’s claws’ at least!)) will know that it is not a simple task, but in isolation this mere proposed form of wording seems to do little to remedy the current situation, or actually change anything.
What do those who actually know say about Pets and Tenancy Agreements?
MyDeposits appear to have followed the guidance of the Dogs Trust Lets with Pets scheme when promoting their view as to what may be a suitable / reasonable ‘Pets Clause’. For those of you involved in letting properties (agents, tenants or landlords), the Lets with Pets website seems to be a useful repository of information, including guidance on how to locate a suitable property and including case studies.
Equally, the TDS (Tenancy Deposit Scheme) have also produced their own guidance – again based around the Lets with Pets proposal.
However, it is not only the Dogs Trust who have been given paws for thought (sorry) on this issue – Cats Protection have suggested their own view on the Purrfect Clause (that one is theirs!).
It is quite clear, from even just a cursory review of the various drafting options available that the Government’s proposed provision is hardly the cat’s whiskers (I may as well embrace it now!).
What should you be thinking about when it comes to Pets and Tenancy Agreements?
What is to be remembered is that this is not (yet) a statutory right (“Jasmine’s Law” as a Bill is still moving slowly through Parliament) so any obligation to allow a pet to occupy will only be created through a contractual right (ie: one which is set out in the tenancy agreement).
This means that although the Government have proposed what they consider to be a sensible form of wording, it remains between the landlord and tenant to agree what should actually be included in the Tenancy Agreement (although tenants often feel they have the weaker negotiating position).
Tenants, Pets & Tenancy Agreements
Tenants will approach this issue considering what is in the best interest for their pet (people will be acutely aware of the reports from animal charities as to issues of abandonment during lockdown) and as such will instinctively seek for longer term agreements. If a tenancy agreement is for 6 months, or 12 months with a 6 month break clause, then it is clearly within the landlord’s consideration to terminate within that period. Being evicted with a pet could cause difficulty in finding alternative accommodation within the required area, or at a similar price, and result in the pet needing to be re-homed notwithstanding this proposed voluntary contractual clause.
Tenants will also be wary toward any nuisance clause in their tenancy agreement which their pet could find them in breach of – although a fish is unlikely to disturb the neighbours (unless the tank leaks) – and whether or not properties are even suitable for certain animals.
Landlords, Pets & Tenancy Agreements
Landlords will be considering whether, if agreeing to an animal being in occupation, this will impact the definition of ‘fair wear and tear’ (and the difficulty arguing what they thought might happen permitting a dog / cat in a property), and what hidden costs they will later have for cleaning, repairing, re-turfing and de-infestation.
They will also need to consider whether they can then have any future tenants with a particular allergy (or whether they simply re-decorate entirely at every letting), and if they have a superior lease whether they are even able to offer this option (always be careful to make sure the two agreements meet!).
I sincerely hope that if and when Jasmine’s Law should receive Royal Assent there will be greater clarity as to what considerations both landlords and tenants must have as to what will be deemed a ‘reasonable request’.
Disputes, Pets & Tenancy Agreements
Lawyers and Judges out there will be collectively banging their heads against the proverbial desk for the Government’s helpful proposal to use the subjective phrasing of unreasonably withhold or delay in keen anticipation of the variety of creative arguments which will arise as to what is ‘unreasonable’, what is a ‘good reason’ and how to demonstrate that a request has been ‘received’. Does a ‘fee’ constitute a general premium, on the usual market rent, for a property marketed as being pet friendly?
It is difficult to see that this proposed form of wording, in the absence of legislation, will do anything but create a new world of arguments (cynical view of a litigator there) given that the lengths people will go to to protect their furry friends is well known not only in landlord and tenant disputes, but also matrimonial proceedings and even under a Will.
What is the next step for Pets and Tenancy Agreements?
With the introduction of this new model clause, nothing has actually changed. It remains for landlords and tenants to simply reach an agreement.
The Government have laudably acted with considerable pace recently in introducing new legislation to deal with the pandemic, even with courts having regard to legislation before it has been passed, however worryingly this seems to be a situation where policy has overtaken legislation to simply create greater uncertainty and a new platform for disputes with little justification – there being no compulsion on landlords to include this provision, and the proposed form of wording being a poor imitation of that proposed by the Dogs Trust or Cats Protection.
Britain, in my view, is wonderfully a nation of animal lovers and I will wear that badge with pride (and shamelessly admit to often being that strange person walking past an animal and greeting it with a cheery “Good Morning” whilst simply acknowledging their human pet). But this latest proposal by the Housing Secretary is hardly the illusive cream which the cat has been seeking, and is far from the solution which ensures that the priorities of landlords and tenants are balanced, whilst paying appropriate consideration toward animal welfare (raising my cup of tea to Mr Grayling for once with his hedgehogs).
Both Landlords and Tenants alike will need to give serious consideration toward whether there should be a ‘pets clause’ in their agreement, and fully understand and appreciate the long-term impacts which keeping pets when occupying property under these forms of agreements can occasion – particularly in the current absence of any legislative guidance.
Each animal and property will have its own unique characteristics which will need to be considered when drafting these forms of bespoke clauses, and although there may be an option in the model Tenancy Agreement, landlords, agents and tenants alike should be wary of simply accepting this as the best option.
As for me, well I will sit here, mug in hand, smiling warmly when thinking about that little hedgehog, and hoping that the Government, when passing any legislation on this topic, will pay more attention toward the needs of people and animals than they have done with this premature and paw piece of drafting.
Charles Jamieson is an experienced solicitor in the Bishop & Sewell Dispute Resolution Department, taking instructions in Landlord & Tenant, Property, Commercial and Chancery disputes. If you would like to speak with Charles, or any member of the dispute resolution team, contact Bishop & Sewell by email to: litigation@bishopandsewell.co.uk
The above is accurate as at 02 February 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.
