Mahvash Ikram
You’re renting an apartment on the third floor of a multi-unit building in downtown Auckland. Your landlord says you can have a dog, pursuant to the new pets-in-rentals rules that came into effect late last year as part of the Residential Tenancies Amendment Act 2024.
Blanket bans on pets in rentals are now unlawful and a thing of the past.
But you’ve struck a problem. While your landlord is on board, the body corporate that manages the apartment building – including your landlord’s unit – is not. It has declined consent for your dog, pointing to the “no pets” clause in the body corporate operating rules.
So what happens now?
The Unit Titles Act 2010 (UTA) which governs bodies corporate offers some hope: it states that a body corporate must not implement any operational rule that contradicts the law – in this case, the Residential Tenancies Amendment At.
But this doesn’t yet appear to have come to the attention of many bodies corporate. Most have pet clauses, some have outright bans and many stipulate “pets only by consent”.
Others attempt to rule on the number and type of pets which might be consented, regardless of whether or not this might be reasonable. And one set of body corporate rules LawNews has viewed says while the apartment owner might be permitted to have a pet, this will not apply if the property is tenanted.
So, as a tenant, what are your options? The Tenancy Tribunal is the obvious first step, but who should you sue? Your tenancy agreement is with the landlord so he or she is the obvious choice but the landlord isn’t the problem here. It’s the body corporate which has come in over the top of the property owner and said no.
So, can you, as a tenant, raise a claim against the body corporate instead? And would the tribunal have jurisdiction over bodies corporate in what is essentially a forum for landlords and tenants?
The government’s approach
The approach to bodies corporate and pet laws is “evolving”, the Ministry of Housing & Urban Development told LawNews in a statement, noting that body corporate rules affecting a tenant’s unit form part of the tenancy agreement.
“The new pet provisions under the Residential Tenancies Act 1986 provide that a landlord can no longer impose a prohibition on pets without reasonable grounds,” the ministry said.
“Reasonable grounds for refusing consent for a pet include reliance on any rule which applies to the premises under any legislation. We consider this to include any validly made body corporate rule preventing pets which may apply to the premises.”
The issue then is likely to be whether the body corporate rules were validly made under the provision of the UTA.
The ministry goes on to say that the Tenancy Tribunal does have jurisdiction to hear cases under the UTA if they relate to a body corporate matter. “The approach to bodies corporate and pet laws is evolving and over time we expect precedent will be set which should provide more clarity in such cases.”
Blanket bans ultra vires
Most bodies corporate require specific consent for apartment owners to keep pets and, in spite of the changes to the Residential Tenancies Act, some have retained their pet bans, even though such rules would now be considered ultra vires, property and commercial law specialist, and a director at law firm Pidgeon Judd, Ben Thomson, said.
Ben Thomson
“A body corporate can pass rules and register them with Land and Information New Zealand and… they [become] officially the body corporate rules, but that doesn’t necessarily mean that a rule… is enforceable or valid in terms of the Unit Titles Act.”
This does mean, however, that while a body corporate could not prevent owners from keeping pets, those renting may find themselves bound by a tenancy agreement consenting to the body corporate’s “no pets” rule, he said.
“It doesn’t change the fact that it is actually still in their rules and sometimes that’s enough for some people… They [tenants] don’t dig into it… and don’t understand the case law around [it]”
Joanna Pidgeon
Joanna Pidgeon, a director of Pidgeon Judd and member of TLANZ Property Law Committee, said it was not within the body corporate’s power to decide how an owner wanted to use or enjoy their property.
Under s 79(d) of the Unit Titles Act, owners are entitled to have quiet enjoyment of the unit without interruption by other unit owners or occupiers or the body corporate.
And if the landlord wanted to rent the property to someone who wanted to keep pets, it would be permitted, but if the body corporate refused to allow pets, then it was fair for a property owner to expect the body corporate to provide reasonable grounds for that decision.
Reasonable grounds
Under s 42(d) of the Residential Tenancies Act, a landlord may refuse consent to a pet only on “reasonable” grounds, which are stated only in general terms in s 42(f) as being the nature of the premises, whether the property is unsuitable for the type of pet, and the likely impact on neighbours or other occupants. Tenants are required to request pet consent by submitting a written application to the landlord.
However, the Unit Titles Act is not as straightforward, Pidgeon said.
In the case of a body corporate, the tenant should make the request to the landlord who acts as an intermediary and puts it to the body corporate. Under s 208, the body corporate must not unreasonably withhold consent for a pet request, she said.
Thomson said there would not be many occasions where a body corporate could realistically object to a pet.
But a body corporate had the final say and it could decline the tenant’s request, even if the landlord supported the application, provided it could show reasonable grounds for refusing.
“I would be arguing – if I was acting for an owner seeking consent – that it was unreasonable not to provide a reason,” Pidgeon said.
The body corporate’s decision would be mainly guided by s 79 (d) – the owner’s entitlement to the quiet enjoyment of their unit, she added.
“If the pet is likely to interfere with other people’s quiet enjoyment or the size and nature of the property… [then] I think you could pretty safely say that if the body corporate withheld their consent, that would be pretty reasonable.”
Pidgeon said a tenant’s dispute over a body corporate’s “no pets” rule could be taken to the Tenancy Tribunal, and the claim would likely involve the landlord and the body corporate because it would rely on both the Residential Tenancies Act and the Unit Titles Act.
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