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Are blanket ‘no pets’ bans unenforceable in residential tenancies?

1 Mar 2024

| Author: Ria Shon

The human-animal bond has evolved over many millennia; what started as a working relationship where animals were used as tools to further human causes has developed into friendship and companionship. According to Companion Animals New Zealand, an estimated 64% of Kiwi households have at least one pet.

But while owners usually view their pets as part of the family, the Residential Tenancies Act 1986 (RTA) fails to protect or even recognise this relationship. This disadvantages those who cannot afford to buy their own home, although social housing provider Kāinga Ora allows its tenants to keep pets in their homes, subject to conditions. The private sector is a different matter. Here, landlords routinely exclude pets (and smokers) from their properties, the main concern being the potential damage pets could do to their investment properties.

Despite precedent stating that damage caused by pets could fall under intentional or careless damage for which the tenant is liable, most landlords include blanket “no pet” clauses in their tenancy agreements. This has forced growing numbers of renters to abandon their pets or keep them in secret.

But hope could be on the horizon. In the runup to last year’s election, the Act Party proposed a “pet bond” which would enable landlords to charge a higher bond than the current four weeks’ rent to cover any damage caused by pets. The new coalition government has promised to change parts of the RTA and pet owners will be crossing their fingers that pet bonds are included in the package of reforms.

 

Pet-friendly jurisdictions

Many overseas jurisdictions have proactively balanced the interests and rights of landlords and tenants when it comes to pet ownerships.

France, in 1970, was the first country to prohibit “no pet” covenants in residential leases, subject to the requirement that the animal did not damage the property or disturb other occupants. In 1977, Ontario voided all provisions in tenancy agreements that banned animals in residential complexes.

Across the ditch, Victoria in 2020 amended its Residential Tenancies Act 1997 to prevent landlords from unreasonably refusing consent to renters wanting to keep a pet. To deny consent, the rental provider must apply within 14 days to the Victorian Civil and Administrative Tribunal (the equivalent of our Tenancy Tribunal). It is then at the tribunal’s discretion to make a determination. Failure to make an application is taken to be an automatic approval of the tenant’s request. The UK’s Renters (Reform) Bill 2022- 23 to amend the Housing Act 1988 imposes more comprehensive obligations on the tenant. It seeks to include an implied term that a tenant may keep a pet with the consent of the landlord, which is not to be unreasonably withheld. As a condition, tenants may be required to have insurance covering pet damage or pay the landlord’s reasonable costs of maintaining such insurance. The bill is awaiting its third reading.

 

Unenforceable provision?

These global examples illustrate an increasing recognition of the importance of companion animals in people’s lives. In New Zealand, however, the status of pets in our residential tenancies legislation remains open to interpretation.

In 2023, two Tenancy Tribunal orders pertaining to dogs and guinea pigs gained publicity when adjudicators indicated that “no pets allowed” clauses may be unenforceable.

Both cited s 11 of the RTA, stating that there is “no legal justification within the Act to exclude pets from a tenancy agreement” and that obligations imposed on tenants that are not contained in the Act are unenforceable unless “the tribunal is satisfied that the restriction should be permitted”.

But the orders have created confusion about the legal status of blanket pet bans. Government website Tenancy Services says in its view landlords can completely ban pets in their rental properties and, in practical terms, finding a property permitting pets is all but impossible in today’s tight rental market. ■

 

Ria Shon is a University of Auckland Equal Justice Project student representative on the Property Law committee

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