Submission: Companion Animals Taskforce

The Tenants' Union welcomes the opportunity to make this submission, which is focused particularly on the barriers to companion animal ownership in rental housing (discussed at page 37 of the Taskforce's discussion paper).

We agree with the Taskforce's findings that rental housing in New South Wales is 'pet-unfriendly', and that removing the barriers to companion animal ownership in rental housing would help reduce the appalling numbers of animals that are surrendered and destroyed each year.

Personal responsibility for companion animal ownership – a fundamental principle

We submit that companion animal ownership is fundamentally a matter of personal responsibility. By this we mean:

• an individual should be free to choose to keep a companion animal, subject to the law; and
• an individual who chooses to keep a companion animal should be liable for any costs or losses that arise from their keeping the animal.

Throughout this submission, we will refer to these aspects of the principle as the 'freedom of choice' aspect, and the 'liability' aspect, respectively.

In the NSW rental housing system, the principle of personal responsibility for companion animal ownership applies imperfectly. The liability aspect applies, but not the freedom of choice aspect; that is to say, tenants are liable for any animals they may keep, but are not free to choose to keep an animal – in most tenancy agreements there is a term prohibiting the tenant from keeping an animal without the landlord's written consent.

The freedom of choice aspect

The Residential Tenancies Act 2010 (NSW) (the RT Act) prescribes a number of terms that are included in every residential tenancy agreement. The term prohibiting pets without the landlord's written consent ('the pets term') is not one of them. Rather, the pets term is an additional term that is included in the standard form of agreement set out at schedule 1 of the Residential Tenancies Regulation 2010 (NSW) (the RT Reg). It states:

43. The tenant agrees not to keep animals on the residential premises without obtaining the landlord's consent.

An identically worded pets term is included (at clause 44) as an additional term in the version of the standard form published by the Real Estate Institute of NSW, which is used widely by real estate agents and landlords.

Note: About 83 per cent of rental housing in New South Wales is rented through real estate agents or directly from private landlords ('private rental housing'). About 15 per cent is public housing rented from Housing NSW, which uses its own version of the standard form of agreement, without the additional term from the RT Reg. Instead, Housing NSW's tenancy agreement contains an additional term that generally permits the keeping of pets:

38. The landlord agrees

38.1 subject to any by-law applicable under clause 33 prohibiting pets, that the tenant may keep pets in the residential premises if the pets do not interfere with the reasonable peace comfort and/or privacy of neighbours.

38.2 The tenant agrees to remove any pet within 48 hours where in the reasonable opinion of the landlord the pet is not suitable to be kept on the premises and the landlord gives the tenant written notice to that effect

38.3 Clauses 38.1 and 38.2 do not apply to restricted dogs as defined by the Companion Animals Act 1998 or dogs declared as dangerous pursuant to that Act. The tenant must not keep any such dogs on the premises.

A very small proportion of rental housing (about two per cent) is rented from community housing organisations. Each of these organisations has its own policies about the keeping of pets, and many permit pets in properties it owns; however, many community housing properties are headleased from private landlords and real estate agents under agreements that include the usual pets term, and this restriction is in turn applied to the tenants.

The pets term creates the situation where one responsible adult must ask another responsible adult if they can keep a pet. This is, we submit, offensive to the principle of personal responsibility for companion animal ownership and makes renting 'unfriendly' both to pets and to their owners.

The pets term in practice

In our experience, practice around the pets term varies. As an additional term in a standard form of agreement, the pets term is included in agreements even where the landlord has not deliberately turned their mind to the question of the tenant's animal ownership. In some cases, tenants are dissuaded from even asking for the landlord's consent to keep an animal. Where they do ask, the landlord or agent might refuse as a matter of course, without considering the reasonableness of the tenant's request. In some cases, the agent or landlord might give consent orally but refuse to give it in writing, or otherwise turn a blind eye to the question of the tenant's animal ownership, but then later invoke the term in the event of a dispute (about the animal, or indeed about some other matter).

Case study

Holly lived in a block of units where several of the residents owned cats. Holly asked her landlord if she could keep a cat, and her landlord consented – but not in writing. Twelve months later, the real estate agent accused Holly of keeping a cat without consent, said that they had received complaints (but disclosed neither the substance or the source), and told Holly that she had to get rid of the cat or leave. Holly protested that the landlord himself had consented, but the landlord declined to intervene in the dispute.

Holly decided to keep the cat and move out. She had difficulty finding alternative accommodation; eventually, she was given a tenancy in a property in poor condition, after promising to steam-clean and flea-treat the premises on leaving. (Holly's cat has never had fleas.)

The variability in practice around the pets term is a problem in itself. As the graph below shows, households in private rental move more often than households generally. A tenant may acquire a pet on the basis of their present landlord's consent but, over the life-span of the animal, they may also have to move and deal with other prospective landlords who may refuse consent. This may result in a pet being surrendered to a pound, or in the tenant restricting their own housing options in the search for pet-friendly rental housing.

Note: Neither the graph nor the data on which it is based distinguishes renters with pets from renters without pets; it is reasonable to assume that renters with pets would move less often than those without. Nonetheless, it is important to keep in mind that not all moves by renters are by choice: about one in six moves follow a termination notice by a landlord.

Graph 1. Mobility of households 
[Australian Bureau of Statistics (2009) 'Housing Mobility and Conditions 2007-08']

Restrictions on freedom of choice under other laws

We accept that a person's freedom to choose to keep a companion animal may be restricted by laws that apply to the population generally, or to persons occupying property in certain locations, provided that they apply without distinction between tenants and other occupiers, and that where a person is empowered to impose restrictions, the restrictions are not imposed unreasonably.

We submit that the Strata Schemes Management Act 1996 (NSW) (the SSM Act) and the Residential Parks Act 1998 (NSW) (the RP Act) contain provisions that allow persons to unreasonably impose restrictions on the keeping of companion animals.

The SSM Act allows owners corporations to make by-laws that restrict the keeping of animals, and there is no requirement that the restriction be reasonable; nor is there any requirement, where a by-law allows the owners corporation to make decisions about animals on a case-by-case basis, that the decision be reasonable.

Case study

Ingrid lived in a strata complex with two dogs. Ingrid is blind, but the dogs are companion animals, not guide dogs.

Ingrid's tenancy agreement allowed her to keep the dogs, as did the by-laws in force when Ingrid moved in. During her tenancy, however, a number of residents collaborated to change the by-laws and prohibit the keeping of dogs. Through the owners corporation, they proposed to take action against Ingrid for breach of the new by-law. Ingrid left the complex.

Similarly, the RP Act allows park operators to create 'parks rules', including in relation to the keeping of animals, without any requirements as to the reasonableness of the rules or the reasonableness of decisions made under the rules.

Case study

Jon is a park resident who is chronically ill, and has been given a dog trained as a support animal. He has asked the park operator for permission to keep the dog, but the park operator has refused: the park rule is that 'small' dogs are allowed, and Jon's dog is a retriever. Although the dog is well-trained and causes no trouble, the park operator applies to the Consumer, Trader and Tenancy Tribunal for an order terminating Jon's tenancy on the ground of breach of the rule.

Jon is very distressed, but won't give up the dog. The case continues.

We recommend that each of these Acts be amended to limit the respective powers of owners corporations and park operators to make by-laws and park rules that restrict the keeping of animals, such that any restrictions are reasonable, and disputes about the reasonableness of a rule, or its application, may be resolved by the Consumer, Trader and Tenancy Tribunal.

Recommendations – freedom of choice aspect

We submit that the principle of personal responsibility for companion animal ownership should be enshrined in residential tenancies law by providing tenants with a clear right to companion animal ownership, subject to other applicable Acts.

To this end, we recommend that terms that restrict the keeping of companion animals should be prohibited terms (per s 19 of the RT Act), except where the term reflects a restriction that applies to the premises under another Act (for example, a restriction in a by-law under the Strata Schemes Management Act 1996 (NSW) (the SSM Act)).

Such a provision would provide for a clear, practical right to companion animal ownership. From a legislative perspective, it could be achieved easily by amendment to cl 5 of the RT Reg. Amendment of the RT Act itself would not be necessary.

Alternatively, a more qualified right could be provided for, by providing that a tenant must not keep an animal on the premises without the landlord's consent, and that the landlord must not unreasonably withhold consent. Reasons for withholding consent might include a restriction under another Act (for example, a by-law under the SSM Act). Disputes about the reasonableness of withholding consent would be resolved by application to the Consumer, Trader and Tenancy Tribunal.

This alternative provision could be achieved by amending the RT Act to insert a new section, along the lines of the provisions about tenants asking for consent to make alteration (s 66) and to sublet premises (s 75).

Of these alternatives, we prefer the former: it would provide a clearer right to companion animal ownership and is legislatively easier to achieve.

We further recommend that the SSM Act should be amended to limit the making of by-laws about pets. In particular, we recommend that by-laws about pets should be limited to either 'option 'A' or 'option B' as set out in the model by-laws at Schedule 2, cl 17 of the Strata Schemes Management Regulation 2010 (NSW) (the SSM Reg). This limitation could be achieved by amendment to the SSM Act at s 49; the SSM Reg should also be amended to delete 'option C.' Disputes about the reasonableness of a by-law or its application would be resolved by application to the Consumer, Trader and Tenancy Tribunal.

We further recommend that the RP Act should be amended to limit the making of park rules about pets. In particular, we recommend that the provision at s 62(3) be amended to provide that a park rule, and any decisions made under a park rule, must be reasonable (as well as consistent with any other Act or law, as is currently provided). Alternatively, the specific provision for park rules about the keeping of animals (section 62(2)(e)) could be amended to provide that the rule must be reasonable. Disputes about the reasonableness of a park rule or its application would be resolved by application to the Consumer, Trader and Tenancy Tribunal.

The liability aspect

As noted above, the RT Act prescribes certain terms that are included in every tenancy agreement. A number of these terms are relevant to the liability aspect of companion animal ownership. These terms provide that:

• the tenant must not cause or permit a nuisance (s 51(1(b));
• the tenant must not interfere with a neighbour's reasonable peace, comfort and privacy (s 51(1)(c));
• the tenant must not intentionally or negligently cause or permit any damage to the premises (s 51(1)(d)); and
• the tenant must keep the premises in a reasonable state of cleanliness (s 51(2)(a)).

It is beyond doubt that where an animal kept by a tenant causes a nuisance, or an interference with a neighbour, or damage, or causes the premises to be unclean, the tenant is in breach of their obligations under their tenancy agreement. This means that the tenant may be liable to compensate the landlord for losses suffered by the landlord as a result of the breach; the breach may also be grounds for termination of the tenancy by the landlord.

It is also beyond doubt that where a landlord gives consent for a tenant to keep an animal, the tenant's liability is unaffected; consent in no way reduces the tenant's liability or inhibits the landlord's ability to recover losses or proceed against the tenant for breach of the prescribed terms.

Cleaning and fumigation

There is another term that is relevant to the liability aspect of companion animal ownership: the additional term at cl 45 of the standard form of agreement provided under the RT Reg:

45. The tenant agrees to have the carpet professionally cleaned or to have the residential premises fumigated if the cleaning or fumigation is required because animals have been kept on the residential premises during the tenancy.

Like the pets term, this additional term is replicated in the Real Estate Institute's version of the standard form of agreement (at cl 46) and so is included in most tenancy agreements.

This additional term is permitted under the RT Act as an express exception to the usual prohibition on additional terms that purport to make the tenant liable for the professional cleaning of the premises at the end of the tenancy (the prohibition is at s 19(2)(a); the exception is made at s 19(3)).

We note that the additional term has caused some difficulties in practice, because the meaning of 'if the cleaning or fumigation is required' is not clear: in particular, it is not clear whether 'is required' means that cleaning is required on an objective assessment of the uncleanliness of the premises, or simply because the landlord says they require it. We recommend that tenants' liability in this regard be clarified by an amendment.

Pet bonds

Finally, some landlords who give consent for a tenant to keep a pet do so on the condition that the tenant pays an additional amount of security against breach. This additional amount of security is often called a 'pet bond'. Being a form of security other than a rental bond, pet bonds are unlawful under the current law (s 160 of the RT ACT).

As indicated in the Taskforce's discussion paper, occasionally proposals are made to amend the RT Act to allow pet bonds. We do not support such proposals. As indicated above, we are strongly of the view that rental housing is 'pet unfriendly' because tenants' freedom of choice is restricted, and not because of any deficiency in the liability aspect.

We are concerned that pet bonds, on their own, would not make rental housing more pet-friendly, and may in fact make it more 'unfriendly' to pet owners. We suspect that if pet bonds were allowed, many landlords who currently refuse to allow pets might continue to do so, while landlords who currently allow pets might henceforth charge a bond. The additional cost of a pet bond may discourage tenants from acquiring a pet, and if a pet bond would allowed to be charged against tenants who currently keep a pet, the additional cost may result in some of them surrendering their animals or moving from otherwise suitable accommodation.

If pet bonds were to be allowed, we recommend that they should be subject to the limitations provided for under the Western Australian model, and other safeguards. We also recommend that any amendments allowing pet bonds must also provide for a clear right to companion animal ownership in rental housing.

Recommendations – liability aspect

We recommend that the standard form of agreement under the RT Reg be amended to clarify that a tenant is liable to pay for the cost of cleaning or fumigation where such is required because the premises are unclean.

Without supporting the introduction of pet bonds, and noting our concerns about them, we recommend that if the RT Act were to be amended to allow pet bonds, the law must also be amended to enshrine a clear right to companion animal ownership, as recommended above. Furthermore, a pet bond should only be payable where a tenant actually keeps a cat or dog; the amount of the pet bond should be limited to $100; and claims against the pet bond limited to compensation for the costs of cleaning and fumigation where required because the premises are unclean – keeping in mind that such costs are also recoverable from the rental bond. Finally, a pet bond should not be payable in relation to any animal kept by a tenant at the time of the commencement of the amendment.

Summary of recommendations

• Enshrine a clear right to companion animal ownership in rental housing by amending the Residential Tenancies Regulation 2010 to provide that terms restricting the keeping of companion animals are prohibited terms (per s 19 of the Residential Tenancies Act 2010), except where the term reflects a restriction that applies to the premises under another Act (for example, a restriction in a by-law under the Strata Schemes Management Act 1996).
• Alternatively, provide for a qualified right to companion animal ownership in rental housing by amending the Residential Tenancies Act 2010 to provide that a tenant must not keep an animal on the premises without the landlord's consent, and that the landlord must not unreasonably withhold consent. Reasons for withholding consent might include a restriction under another Act (for example, a by-law under the Strata Schemes Management Act 1996). Disputes about the reasonableness of withholding consent would be resolved by application to the Consumer, Trader and Tenancy Tribunal.
• Amend s 49 of the Strata Schemes Management Act 1996 to limit the making of by-laws about pets to either 'option 'A' or 'option B' as set out in the model by-laws at Schedule 2, cl 17 of the Strata Schemes Management Regulation 2010; also delete 'option C' from the Strata Schemes Management Regulation 2010. Disputes about the reasonableness of a by-law or its application would be resolved by application to the Consumer, Trader and Tenancy Tribunal.
• Amend the Residential Parks Act 1998 at s 62(3) to provide that a park rule, and any decisions made under a park rule, must be reasonable (as well as consistent with any other Act or law, as is currently provided). Alternatively, amend the specific provision for park rules about the keeping of animals (section 62(2)(e)) to provide that the rule must be reasonable. Disputes about the reasonableness of a park rule or its application would be resolved by application to the Consumer, Trader and Tenancy Tribunal.
• Amend cl 45 of the standard form of agreement under the Residential Tenancies Regulation 2010 to clarify that a tenant is liable to pay for the cost of cleaning or fumigation where such is required because the premises are unclean.
• Without supporting the introduction of pet bonds, and noting our concerns about them: introduce them only with accompanying amendments that enshrine a clear right to companion animal ownership in rental housing; allow a pet bond to be charged only where a tenant actually keeps a cat or dog; limit the amount of the pet bond to $100, and claims against the pet bond to compensation for the costs of cleaning and fumigation where required because the premises are unclean; and not allow a pet bond to be charged in relation to any animal kept by a tenant at the time of the commencement of the amendment.