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Landlords fear they may be unable to stop tenants owning pets if two recent Tenancy Tribunal rulings set a precedent for future decisions.
Under the rulings in December and January, tenants - who had earlier signed agreements banning pets - were allowed to keep their guinea pigs and dog despite the landlords protesting against the animals.
The rulings stated the Residential Tenancies Act does not contain any law banning tenants from owning pets and hence clauses barring animals are not automatically enforceable.
That’s led the NZ Property Investors Foundation lobby group to get legal advice as they seek to ensure no-pet clauses remain valid, while Renters United is keen to see no-pet clauses banned.
Mike Atkinson, managing director of Aspire Property Management, said Tenancy Tribunal adjudicators had for about 20 years accepted the legitimacy of no-pet clauses, and he worried “rogue” adjudicators may suddenly begin interpreting the law differently.
Some landlords fear that by allowing pets into their rentals they run a greater risk of damage to their properties and hence bigger repair bills.
Renter groups, meanwhile, argue landlords already exercise too much control over tenants’ private lives, especially at a time when high house prices are forcing more people to rent for longer because they cannot afford to buy their own home.
A guinea pig test case for new rental rules?
The first of the two tenancy rulings in December by adjudicator G Baker directly challenged the validity of no-pet clauses.
In that case, the landlord sought to force his tenants to remove their guinea pigs because the tenancy agreement “specifically excluded pets”.
However, G Baker allowed the tenants to keep their guinea pigs because the RTA did not contain any law banning renters from owning pets.
That meant no-pet clauses are unenforceable because the RTA did “not provide any legal justification for a landlord to exclude pets from a tenancy agreement”, he said.
The January ruling had a nuanced difference.
In that case, the landlord had sought to evict their tenants on two grounds.
They were because the tenants had gotten a dog despite signing an agreement barring animals and because there were too many people living at the property.
Adjudicator T Baker - like colleague G Baker - pointed to the fact the RTA makes no reference to pets.
However, rather than interpreting this to mean no-pet clauses are unlawful, T Baker said it meant the clauses were open to interpretation by the Tenancy Tribunal.
T Baker subsequently weighed the tenant’s distress at losing their dog against the landlord’s interests and ruled that at that point in time, the ownership of a dog was not sufficient grounds to grant an eviction notice.
However, T Baker did grant the landlord permission to evict the tenants from their rental if they continued to have too many people living at the property.
Landlords worry a recent Tenancy Tribunal decision could be a guinea pig case making it easier for renters to own pets. Photo / 123rf
Landlords and tenants want clarity not uncertainty
Sue Harrison, president of the NZPIF, called the December ruling “ridiculous” and said her team is taking legal advice.
The RTA was not written to include every possible circumstance that could arise between landlords and tenants because it is not possible to do so, she said.
“You can’t write laws long enough, so it has to be done by a clause,” she said.
If December’s ruling were to be adopted widely, it could mean many other clauses are also rendered void, she said.
One landlord joked the RTA didn’t mention rebuilding a car motor in the lounge but that didn’t mean tenants should be allowed to do it.
Harrison, who allows pets in one of her rental properties, claimed eliminating no-pet clauses would be “unreasonable” for both landlords and tenants.
That’s because it could increase the financial risks for landlords, leading them to potentially sell up and reduce the number of rental properties available, she said.
She also claimed no-pet clauses helped protect neighbouring tenants and the community from problem renters who, for instance, might irresponsibly bring big or loudly-barking dogs into small apartments.
But Geordie Rogers, president of Renters United, said landlords typically held all the power when deciding if pets should be allowed, so it made no sense to claim a clause that landlords controlled was also in the interests of tenants.
No-pet clauses, strict occupancy rules and other measures “fit with a pattern of landlords trying to have as much control over the lives of renters as possible”, he claimed.
Tenants in Dannevirke in the Lower North Island (not pictured) were allowed to keep their dog despite signing a no pet clause in their rental agreement earlier this year. Photo / 123rf
He believed the nature of rental contracts meant owners had to forego control of their properties in exchange for rent.
The risk of damage from pets was also mitigated by two factors, he said.
That included renters paying rent to landlords to help them cover the cost of insurance, and the requirement they return their rentals in the same condition at the end of a tenancy as they were at the start, minus reasonable wear and tear, he said.
Rogers said the recent decisions on pet clauses were among a handful that had gone in favour of tenants after years of favouring landlords.
“So I guess landlords are rightfully scared renters might be able to have a pet,” he said.
However, he also wanted to see greater clarity in rulings.
To do that Renters United wanted to see the RTA include a provision granting tenants the right to own pets, with Rogers saying it is something various political parties have talked about in the past and continue to discuss.
Precedent setting?
Lawyer Jonathon Wood, a property expert with Court One Auckland, said the recent rulings against no-pet clauses would not necessarily set a precedent other Tenancy Tribunal adjudicators would have to follow.
Adjudicators were free under the law to apply their own interpretation to tribunal hearings on a case-by-case basis, he said.
However, the rulings could still have an influence because adjudicators often referenced each other’s rulings in a bid to make consistent decisions.
It was also possible to appeal tribunal cases to higher courts, such as the District Court, within 10 days of the decision.
If a District Court judge made a ruling on a case that validated or invalidated no-pet clauses that would have the effect of becoming a binding judgement on Tenancy Tribunal adjudicators, Wood said.
A pet lover’s story
Palmerston North renter Jessica Stanton loves her little “piggies”.
As the owner of the guinea pigs mentioned in the December Tenancy Tribunal ruling, she claimed her rental already had cats in it and that she did get the landlord’s permission for her guinea pigs before bringing them into the house.
She also said that after leaving that rental she’s had to live with a friend while spending four months looking for a place that will accept pets.
“It’s been very difficult,” she said.
“I imagine there’s hundreds upon hundreds of people doing the exact same thing as me.”
“People have special connections with their animals but have to get rid of them so they can find a house - they really don’t want to.”
She said guinea pigs don’t cause much mess, spending half their time in cages anyway and believes the RTA should contain a provision allowing pets in rentals.
However, she believes it should specify the types of animals that are allowed where.
“For instance, if there is a fenced-off area, you can have dogs or that cats can go on this property because the fence isn’t high enough - those kinds of specifications, but not a [outright] ban on animals,” she said.
“I feel like a lot of it comes down to communication between the landlord and the tenant.”
