Tribunal rules twice that pets can stay, even if not in the tenancy agreement
On Friday 12th May 2023, Aspire Property Management’s Managing Director Mike Atkinson was interviewed by Mike Hosking on Newstalk ZB, and by the NZ Herald regarding pets in rental properties, after two concerning rulings from the tenancy tribunal.
The cases in question involved one tenant who had a guinea pig and one who had a dog; and despite their tenancy agreement explicitly stating that pets were not allowed, the pets were discovered, and the landlord issued breach notices requiring the tenants to remove the pets.
The tenants refused to comply, arguing that they had a right to keep pets. The cases went to the tenancy tribunal, which ultimately ruled in favour of the tenants in both instances. Each case had a different adjudicator. The tribunal found “the RTA does not provide any legal justification for a landlord to exclude pets from a tenancy agreement. If the RTA does not allow such an exclusion, then a tenant is free to have pets at the property.”
It’s important to note that these were NOT Aspire tenants in question; Mike was asked to provide his commentary and thoughts on the tribunal rulings.
This ruling is significant because it could influence future cases involving pets in rental properties. Landlords might not be able to rely on a signed tenancy agreement saying pets are not allowed. Of course, this doesn’t mean that we can’t still get tenants to agree to no pets and have them sign a tenancy agreement with no pets allowed – it just means that if they do go ahead and get a pet, breach notices are not 100% guaranteed to stand up at the tribunal – as these cases have proven.
It’s important to note that this ruling does not automatically set precedence, according to the Auckland District Law Society, a tribunal finding does not set precedence for future findings, however, multiple rulings in one direction can influence future findings. Each adjudicator is free to interpret the RTA however they want, on a case-by-case basis, but they are likely to be influenced by findings that have previously been made.
Here is the relevant section of the tribunal order about the guinea pig, from December 2022:
- The written tenancy agreement specifically excluded pets.
- The landlord’s agent’s declaration records that this was made clear to the tenant before the tenant entered into the tenancy agreement. The tenant did not deny this.
- As discussed at the hearing, the RTA does not provide any legal justification for a landlord to exclude pets from a tenancy agreement. If the RTA does not allow such an exclusion then a tenant is free to have pets at the property.
- I sympathise with the landlord’s frustration that a clear term of his agreement with the tenant can be ignored. However, a landlord cannot contract out of the provisions of the RTA. See section 11(1) RTA.
- The tenant is entitled to retain his guinea pigs at the property.
- The tenant is reminded of our discussion at the hearing regarding his responsibility to ensure that the presence of his pets does not cause damage to the property. The tenant is reminded that this will include liability for any staining, damage to or flea treatment of the carpet, or any cleaning or treatment that may be required in order to remove any pet smells or residues.”
So, what can landlords do?
At Aspire, our standard tenancy agreement includes our pet clause terms and then states if your tenancy permits pets or not. This ensures that ALL tenants can see the extra commitments required of them if they decide to test the tribunal by taking on a pet outside of their agreement (it includes extra cleaning to rid the property of pet odour and/or fleas, ensuring no damage is caused and pet-behaviour expectations). And should an adjudicator make a decision as per the above, these clauses are within our agreement to provide protection.
We also ask tenants to confirm in writing if they have pets or not, we let them for this and do as much background checking as we can to ensure that the people we put into your property are not likely to break an agreement.
We’ll continue to issue notices to any tenants breaching their tenancy agreement in regard to pets, and we will proceed as normal in enforcing any breaches. We believe these rulings to be an anomaly, but we will remain extremely vigilant.
If you’re not an Aspire customer yet, make sure you have a competent property manager on your side in case you end up at the tribunal over pets. Why not sign up with us today? Just contact us to get the ball rolling!