By Naveen Agnihotri of Arden Chambers and Ibraheem Dulmeer of the Leasehold Advisory Service
April 2017
The British may be considered a nation of pet lovers and hence it is no surprise that leaseholders often ask the following question:
“I own my flat so how can I be prevented from keeping a pet?”
The starting point should be the lease itself. You may want to ascertain if it contains either: (i) a “no pets” restriction clause; or (ii) reference to obtaining prior consent before you can keep a pet.
The clause may read along such lines as:
“not to keep any bird dog or other animal in the Demised Premises without the previous consent in writing of the Lessor…such consent to be revocable by notice in writing at any time on complaint of any nuisance or annoyance being caused to any owner tenant or occupier of any other flat in the building.”
What is a pet?
Whilst there isn’t a definition for “pet” in English case law, the courts have referred to ‘domestic animals’. In Nye v Niblett (1918) 1 KB 23 these were defined “as by habit or training live in association with man”. In an older case Colam v Pagett (1883) 12 QBD 66 involving linnets which were kept in captivity and trained as decoys for bird catching, the court stated that “any pet bird, such as parrot, canary or linnet… were clearly domestic animals.”
The Dangerous Wild Animals Act 1976 distinguishes between domestic and wild animals. Which class an animal falls into is a question of law and not fact: McQuaker v Goddard (1940) 1 KB 687. The court has held that it’s necessary to show that the animal has been sufficiently tamed to serve some purpose for the use of man: Harper v Marcks (1894) 2 QB 319.
Guide Dogs:
What happens if a partially sighted lessee needs assistance with a guide dog but there is a no pets covenant; could refusal amount to disability discrimination? This will very much depend on the position that the freeholder wants to adopt as well as the effects of permitting a breach on other resident leaseholders.
In Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265 a disabled tenant was refused permission to keep a dog despite his presence being critical to her health. The court relied on the head lessor’s objection to the dog and reference to the terms of the lease.
What if the lease is silent on pets?
Where a lease is silent on the issue of keeping pets, a landlord may seek to rely on a general nuisance clause and argue that pets aren’t allowed in a building. In such a scenario, the landlord will struggle to get support from the court in the absence of forceful evidence of actual nuisance being caused.
What to do if in breach:
The ideal outcome is to obtain consent from the freeholder. By providing evidence of other flats where there are pets in the property, it could be easier to obtain consent.
Where there is a pending purchase and written consent has been obtained by a pet owner, then consideration should be given to a deed of variation to be registered at the Land Registry alongside the lease. Likewise, if you own a share of the freehold and the others agree, you may wish to consider changing the lease to allow pets.
Should you get caught for keeping a pet where there is indeed a restriction in the lease; the freeholder can obtain an injunction requiring removal of the pet from the property as well as an order for any legal costs to be paid.
Rudimentary to say the least, but the wording of your lease is crucial to see if you’re allowed to live with that pet that you love so much.
