Q&A - Dogs in Flats 

The freeholder is refusing consent to allow the dog to remain on the premises and has since served a section 146 notice. The clause in the lease says that no pets are to be kept on the premises without the landlord’s consent which can be withdrawn. Such a clause implies, but does not expressly state that consent can be given.

I am struggling to locate any LVT/FTT cases on the point and wondered if there are any obvious cases that consider the reasonableness etc. of the freeholder’s blanket refusal to grant consent.

Answer

Where a clause restricts the lessee’s use of his property, the covenant may be said to be absolute (i.e. the covenant contemplates no possibility of change) or qualified (i.e. the covenant contemplates the possibility of change, usually with the landlord’s consent).  It sounds like the covenant in the instant case is qualified.  It is not clear, however, whether the covenant provides that consent will not be unreasonably withheld.  Generally, if a clause prohibits a change without the landlord’s consent, there is no implied term to the effect that consent will not be unreasonably withheld: Guardian Assurance Co v Gants Hill Holdings [1983] 2 E.G.L.R. 36.  In such circumstances, the reasonableness of the refusal is irrelevant.

In cases where the landlord has expressly agreed not to withhold consent unreasonably, it is helpful to consider the principles that apply in the context of refusing consent in other circumstances.  In Iqbal v Thakrar [2004] 3 E.G.L.R. 21 the Court of Appeal formulated the following general principles, based on those applicable to the grant or refusal of consent to alienation, which apply to the grant or refusal of consent to alterations:

(1)     The purpose of the covenant is to protect the landlord from the tenant effecting alterations and additions that damage the property interests of the landlord.

(2)     A landlord is not entitled to refuse consent on grounds which have nothing to do with his property interests.

(3)     It is for the tenant to show that the landlord has unreasonably withheld his consent to the proposals that the tenant has put forward.  Implicit in that is the necessity for the tenant to make sufficiently clear what his proposals are, so that the landlord knows whether he should refuse or give consent to the alterations or additions.

(4)     It is not necessary for the landlord to prove that the conclusions that led him to refuse consent were justified, if they were conclusions that might be reached by a reasonable landlord in the particular circumstances.

(5)     It may be reasonable for the landlord to refuse consent to an alteration or addition to be made, for the purpose of converting the premises to a proposed use even if not forbidden by the lease.  But whether such refusal is reasonable or unreasonable depends on all the circumstances.  For example, it may be unreasonable if the proposed use was a permitted use and the intention of the tenant in acquiring the premises to use them for that purpose was known to the freeholder when the freeholder acquired the freehold.

(6)     While a landlord need usually only consider his own interests, there may be cases where it would be disproportionate for a landlord to refuse consent having regard to the effects on himself and on the tenant respectively.

(7)     Consent cannot be refused on grounds of pecuniary loss alone.  The proper course for the landlord to adopt in such circumstances is to ask for a compensatory payment.

(8)     In each case, it is a question of fact depending on all the circumstances whether the landlord, having regard to the actual reasons that impelled him to refuse consent, acted unreasonably.
 

All of the above (save (5)) would be relevant to the grant or refusal of consent to a pet.  Ultimately, each case turns on its own facts.  For example, it may be unreasonable to refuse a request to keep a small dog in a ground floor garden flat in a converted house but not a Rottweiler in a flat in a new multi-storey development.  It may be argued in the instant case, having regard to the dog’s apparent ‘soothing and calming influence’ on the autistic child, that it would be disproportionate for the landlord to refuse consent having regard to the effects on himself and on the lessee respectively.

It is assumed, as the landlord has served a s.146 notice, that a tribunal has determined that a breach of the lease had occurred pursuant to s.168 of the 2002 Act or that the lessee has admitted the breach.  If not, the s.146 notice is invalid.  Alternatively, depending on the facts, the lessee may be granted relief from forfeiture on conditions which may allow him to keep the dog.

Jonathan Upton Barrister at Tanfield Chambers