Mahvash Ikram
The Tenancy Tribunal has ruled against a landlord in its first major decision on pets in rental properties since new rules came into effect on 1 December last year.
A Christchurch landlord has been ordered to allow his tenants to keep a golden labrador retriever puppy at their upstairs rental unit, albeit with conditions, after initially declining their request because of concerns about the property’s suitability for dogs and potential noise and nuisance to neighbours.
Finding firmly in favour of the tenants, the tribunal’s principal adjudicator Brett Carter said the landlord’s concerns did not meet the legislative requirement – that the landlord provide reasonable grounds for declining the tenants’ request.
The landlord had breached the relevant sections of the Residential Tenancies Act Amendment Act 2024 (ss 42E, 42F and 42G) by committing an unlawful act, Carter said.
“Any grounds relied upon by a landlord should be supported by a rational evidential foundation, properly connected to the particular pet, the premises and the relevant circumstances.”
The law change prohibits landlords from imposing an outright “no pets” ban unless they have reasonable grounds for refusal. The onus is on the landlord to prove these grounds are reasonable and the decision must be delivered in writing.’
Deliberate move
When changing the law, Parliament’s intentions had been clear, Carter said. It had deliberstely moved away from blanket “no pet” policies and the rules were “intended to enable tenants to have pets, while enabling a landlord to decline consent – but only where it is reasonable to do so”.
“The pet consent rules recognise the benefits that humans receive from keeping pets, including by aiding stability and social life for many people and being important for friendship, fellowship and mental health,” he said.
The consent rules were an intentional reversion of the status quo, “a reversal of the presumption against tenants having pets.
“Parliament intended to make it easier for tenants to have pets….What is clear is that the starting point for these new rules is that pets are permitted, with the landlord only able to refuse consent, or impose conditions, where reasonable….
“If reasonable conditions do not address the landlord’s concerns, then there will be reasonable grounds to refuse consent. But if reasonable conditions can address the landlord’s concerns, consent should be given on those conditions.”
Determining reasonableness
Carter says the issue will be determined on a case-by-case basis as every situation will be different.
But his order offers a framework and guidance about the approach the tribunal will take, and how it will determine reasonableness. A two-step process was needed, Carter said.
The first stage was a factual assessment. Why was the consent withheld and what reasons were given for refusing consent?
The second stage was an assessment of the reasonableness of that decision: whether the reasons given provide reasonable grounds for withholding consent.
“This can be approached by asking whether a reasonable landlord, having regard to the text and purpose of the pet consent rules, could withhold consent.,” Carter said.
“A property may not necessarily be unsuitable for a dog just because it is unfenced or small. An unfenced and/or small property may still be suitable for a small, well-behaved, house-trained dog but may be unsuitable for another. Just as a large and fenced property might be suitable for one dog, but unsuitable for a different dog.”
The two-stage approach was consistent with Supreme Court and Court of Appeal case law relating to the other entitlements to withhold consent, subject to a general reasonableness limitation, Carter said.
The second stage of the assessment should not be constrained by rigid rules and in this particular case the following principles were relevant:
- Landlord should consider pet requests in good faith
- Landlords must consider the premises and the particular pet – for example, an unfenced property is not necessarily unsuitable for a dog as it can be fenced. “What is needed is an assessment of the premises, its neighbourhood, and of the dog, its breed, its training and its propensity to bark,” Carter said.
- The grounds relied on by the landlord should be more than hypothetical
- Landlords should consider whether conditions, including conditions proposed by the tenant, could mitigate any identified concerns
- Landlords must consent to any minor changes to make the premises suitable for a pet
- Landlords must provide clear written reasons for refusal
The Christchurch case
An advertisement for the property, which was located at the middle floor of a three-level building, stated the landlord allowed “pets by consent” and featured a cat at the premises.
But when the tenants, after moving in, asked to keep a dog, they were refused twice – first by the property manager, who did so without consulting the landlord and then, by the operation manager of the property management company, who consulted the landlord after the tenants decided to escalate the matter.
The three of the reasons provided by the landlord – a lack of secure outdoor space, the risk of causing damage to the deck as puppies have high toileting and activity needs and a safety risk due to the height of the deck – were understandable, the tribunal said.
But the fourth reason, disturbance to other residents due to noise, had “no objective basis”.
And even the valid risks flagged by the landlord could be mitigated by taking safety measures that the tenants had already agreed to implement, Carter said.
“I am not satisfied that the landlord reasonably considered whether any conditions could mitigate [the] concerns.”
The tenants offered to pay a pet bond, constant supervision of the dog as one of the tenants worked from home and a trial period. They would arrange professional carpet cleaning at the end of the tenancy and accepted responsibility for any damage, would agree to additional inspections and immediate clean up any waste. They also offered to install temporary fencing, gates and mats on the outdoor deck.
But the landlord still said not. The tenants then decided to take the matter to the tribunal.
The goldfish case
This is not the first “pets in rentals” case to come before the tribunal but it is the first major assessment of how the new rules should be interpreted.
In March this year, the tribunal ordered an Auckland landlord to let his tenant keep more than 10 aquariums at a rental property as long as certain conditions were met. The adjudicator found that the tenant had taken steps to mitigate any damage.
The fish were deemed to meet the definition of a pet.
Read the tribunal’s decision here – A v B REDACTED (2)
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