What was the outcome of Tenancy Tribunal case 4894660?

The tribunal order states: The tenancy of Donald Glen Kidd at Unit/Flat 1, 40A Hounslow Street, Ilam,

How much money was awarded in case 4894660?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4894660?

The primary dispute was 14-day notice. Related themes: Property damage.

Where can I read the official tribunal order for case 4894660?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10771056-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4894660?

The tribunal order states: The tenancy of Donald Glen Kidd at Unit/Flat 1, 40A Hounslow Street, Ilam,

How much money was awarded in case 4894660?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4894660?

The primary dispute was 14-day notice. Related themes: Property damage.

Where can I read the official tribunal order for case 4894660?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10771056-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 40A Hounslow Street, Ilam, Christchurch 8041 Tenancy Tribunal Case 4894660 — 14-day notice

Order

The tenancy of Donald Glen Kidd at Unit/Flat 1, 40A Hounslow Street, Ilam, Christchurch 8041 is terminated, and possession is granted to Progressive Realty Limited As Agent For Sandra Carter, at 5pm on Friday, 27 September 2024.
Donald Glen Kidd must pay Progressive Realty Limited As Agent For Sandra Carter $20.44 being the filing fee on this application.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986 (RTA).
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
The landlord claims tenant has breached their obligations by installing a temporary fence at the front of the property and having a dog at the premises (in breach of a “no pets” clause in the tenancy agreement).
The landlord served 14-day notices on the tenant on 27 March, 4 and 19 April 2024, and the tenant did not remedy the breach within the required period.
A number of issues arise from the landlord’s application as follows: a. Is the “no pets” clause in the tenancy agreement enforceable? b. Is Mr Kidd’s dog a pet, or does it have a recognised legal status? c. Is the installation of the temporary fence a breach of the tenant’s obligations? Background Facts
There is no dispute that Mr Kidd is keeping a dog at the premises. Mr Kidd says that the dog is “companion dog”, not a pet. The dog attended the hearing and was very well behaved.
The tenancy agreement records that the tenant agrees not to keep any pet or other animal on the premises without the landlord’s consent. Mr Kidd also completed an application form for this property and indicated that he did not have any pets.
The landlord says that it does not have blanket “no pets” policy, rather it wishes to assess the suitability of any pet proposed for a property. It says it could not do that in this case because Mr Kidd did not disclose that he has a dog.
The landlord claims the dog is too big for the property and the section is not secure enough for the dog. In support of that, the landlord says that Mr Kidd erected the temporary fencing very shortly after moving in.
Mr Kidd says he did not disclose that he has dog because it is not a pet. He says that it is a companion dog and provided a statement from his GP to that effect. He said the dog was not at the property at the start of the tenancy because it was providing companionship to his (terminally ill) uncle. Mr Kidd says that the fence was erected because of security concerns.
At this stage, the dog does not appear to have caused any damage to the premises. Mr Kidd says the dog is well cared for, exercised often and there is no issue with the size of the section. Is the “No Pets” clause enforceable?
The RTA does refer specifically to pets.
Section 38(1) provides that the tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord. Subsection (2) states that the landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
Under s11 of the RTA any clause of a tenancy agreement which is inconsistent with the RTA or restricts the operation of any provision of the Act will have no effect unless the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted.
A number of recent tribunal decisions have considered whether “no pets” clauses are enforceable or whether they breach a tenant’s right to quiet enjoyment of the premises. The landlord referred me to Collins v Martin-Kemp [2023] NZTT 4711230.
That decision has a full analysis of “no pets” clauses and concluded that they are enforceable for the following reasons: “35. The commentary on s 38(1) in Westlaw states that the covenant for quiet enjoyment protects the tenant’s right to “peaceful possession and enjoyment of the premises” and that enjoyment means “having the full benefit” of the premises.
Arguably, the ability to have a pet is part of a tenant’s right to have the ‘full benefit’ of occupying the premises.
Unless permitted by s 11(1)(b), section 11 RTA prohibits the parties from contracting out of the RTA.
However, the fact the parties agreed to the ‘no pets’ clause in the tenancy agreement requires additional consideration.
The District Court in Marino v Wellington City Council DC Wellington CIV-2013- 085-660, 23 September 2013 permitted tenants to waive the right to reasonable peace, comfort and privacy by entering into a tenancy agreement knowing that there was construction noise next door.
In Wellington City Council v McMillan DC Wellington MA12-13-14/04, 5 September 2003 the court upheld terms that limit the rights of tenants under s11(1)(b) where the parties are fully informed of and agree to the terms of the tenancy agreement.
These decisions indicates that if a tenant knew the tenancy agreement did not allow pets and accepted the tenancy, then a “no pets” clause can be enforceable.
Holland J in Anguetil v North Canterbury Nassella Tussock Board HC Christchurch AP93/89, 30 October 1989 rejected the tenant’s argument that s 11(3) prevented the tenant from agreeing to an increase in rent in a manner contrary to s24(3) of the Act: Is common sense intended to be excluded by the Act? Can a landlord and tenant simply not verbally agree about an increase in rental as is so often the case? I cannot accept that when it enacted this Act the legislature had in contemplation that it would provide licence to a tenant to resile from a consensual contractual obligation and instead shelter behind the technical provisions of the Act. It seems to me that the whole focus of the Act is to protect tenants against the wiles of avaricious and unscrupulous landlords....
Following Anguetil, the Tribunal in Schmid v Murray TT 181/91, 6 June 1991 said: If a landlord and a tenant who, being in possession of all of the relevant facts and capable of exercising their judgement rationally, decide expressly or impliedly to agree to the landlord breaching one of his/her obligations under the Act, I do not consider that the tenant can later assert that in terms of section 11(3) such a waiver is of no effect. Quite apart from that offending common sense and fairness, it is contrary to fundamental contractual principles of estoppel and I do not believe that the legislature intended this legislation to depart from such a basic principle as that. Having given informed consent to the landlord’s breach of the tenant’s right to quiet enjoyment, the tenant could not “shelter behind” s11(3) of the Act.
In Re Rainbow Trustee 2019 [2023] NZTT 4523629 the Tribunal tacitly endorsed a “no pets” clause when it decided not to interfere with the increase in rent because it was the result of the tenants deciding to keep a puppy. The rent was initially set at $700 per week on the basis that no pets be kept; the previous tenant paid rent of $750 which allowed for a pet. The Tribunal considered that the increase was objectively reasonable as the tenants initially accepted the tenancy without them being able to keep a pet. When they decided to get a puppy, the terms of the agreement changed so the Tribunal dismissed the application for a refund of the increased rent paid by the tenant.
In the New South Wales Supreme Court case of Allkins v Consumer Trader and Tenancy Tribunal [2006] NSWSC 1093 the residential site agreement required the tenant to comply with the park rules pursuant to the Residential Parks Act 1998 (NSW). These rules stated: 1. Any and all pets entering Valhalla Village must first be approved by management; 2. If a resident moves into the village without a pet, they cannot obtain a new pet; 3. If a pet dies, it cannot be replaced.
NSW Associate Justice Malpass held that the park rules did not violate the tenant’s right to quiet enjoyment: Clause 52 of the agreement provided that the plaintiff was not to keep or care for any pets, poultry or animals on the site or in their dwelling, except as permitted by the park rules. The clause also incorporates the park rules into the agreement. I am not satisfied that the rules concerning pets are inconsistent with the provisions of s 20 of the Act (in particular I am not satisfied that they interfere, or cause or commit any interference, with the reasonable peace, comfort or privacy of the resident in using the site)
In the light of the above authority, I consider that the no pets’ clause is enforceable.”
The issue was considered from another perspective in Kristen Gaunt v Ngati Kahungunu Ki Poneke Community Services [2023] NZTT 4477761 where the tenant had applied for an order allowing her to keep a pet, contrary to a “no pets” clause.
In that case, the Tribunal also held that the “no pets” clause was enforceable, as follows: “Can the Tribunal Order the landlord to allow the tenant to keep her cat?
The tenancy agreement clearly states: “The tenant must not keep any pets on the property or permit any person to keep or feed or allow any pet on the property”. KWS says this is the standard clause in all of their tenancies which they have because they do not own the homes they rent out, so they must ensure they keep them well maintained.
Ms Gaunt’s submissions as to why she should be allowed to keep the cat are as follows: i. The cat brings her family crucial joy on the back of a family tragedy. ii. It took KWS three months to issue her with a 14-day Notice to Remedy (being to remove the cat). iii. When the actual owner marketed the property for rent the advertisement said pets were allowed in the home. iv. They had a mouse problem which the cat has alleviated.
The RTA does not specifically prohibit landlords from including requirements in their agreements with respect to the keeping of pets. Presumably, the reasoning for this is that landlords are entitled to protect their houses from the damage that many animals inflict.
Therefore, whilst I sympathise with Ms Gaunt’s predicament, the RTA does not provide the Tribunal with the jurisdiction to override a landlord’s clause on pets in a situation such as this. Landlords are entitled to ensure that their properties are kept well maintained and this is often the reason they chose to prohibit pets. Although I accept Ms Gaunt’s evidence that her cat is well behaved, this does not mean that such a clause is unreasonable or unenforceable.”
For the reasons set out in the Collins and Gaunt decisions, I find that “no pets” clauses are enforceable.
If I am wrong, and “no pets” clauses are not generally enforceable, I would have to consider whether to enforce the clause in this case, having regard to s11(1)(b) RTA.
I would find that the clause is enforceable having regard to fencing at the property and size of the section. I would also have regard to the tenant’s response in the tenancy application, denying that he had a pet, in circumstances where he already owned the dog (albeit that it was staying with his uncle). I would have taken account of the submission that the tenant sees the dog as “companion dog” rather than a pet. Ultimately, I would find that the clause is enforceable.

Is the Dog a Pet?

Mr Kidd says that, even if the “no pets” clause is enforceable it does not apply in this situation because his dog is a companion dog, not a pet. He provided me with a letter from his GP supporting that submission. He also referred to me to the dog’s registration on the “Companion Animals NZ Register”.
Mr Kidd claimed that the landlord’s refusal to allow his dog was a breach of the Human Rights Act.
The tenant genuinely believes that his dog is a companion animal with recognised legal status. However, he could not provide me with evidence to support that conclusion. The only animals with status under the Human Rights Act are properly certified disability dogs. There are only eight organisations which can certify disability dogs in New Zealand. It is a rigorous and thorough process.
The Companion Animals NZ Register is a register for recording details of microchipped animals. It does not confer any legal status on an animal. However, its website does have a useful description of the legal status of support animals. It states: “Firstly, let’s clarify what an assistance animal is in the New Zealand context. Broadly speaking, these fall into two categories. The first category is called a disability assist dog. These are dogs (and not any other species) who have been granted special legal rights under the Human Rights Act 1993 and the Dog Control Act 1996. A dog who has been granted these special rights is legally entitled to public access. This means they can go most places that a human would go, including all forms of stores, eateries, public services and public transportation. The only places they can’t go are national parks, some areas in zoos, and some hospital departments e.g. burns units, ICUs. The second category doesn’t have a formal name. In this article we will use the term support animal or support dog. These are animals (usually dogs) who belong to a person with a physical impairment or mental health condition and may perform a valuable service to that person, but do not have public access rights. As such, they do not have any more access rights to shops or public transportation than does any other companion animal. These animals may or may not be associated with an organisation. They may or may not wear a coat stating that they are a therapy dog or support animal. Dogs should not wear a coat stating that they are a service animal unless they are accredited by one of the eight [accredited] organisations...”
Mr Kidd’s dog is not a certified disability dog. It does not have any legal status. For the purposes of this application, it is a pet. I am somewhat surprised by the written statement from Mr Kidd’s GP describing the dog as a “companion animal”; suggesting that it has a legal status beyond being a pet. The Temporary Fence
Very early in the tenancy, Mr Kidd installed temporary fencing at the front boundary of the property. The landlord says it has received complaints about the fencing but could not provide any evidence of that.
Mr Kidd says that the fence was installed to provide enhanced security at the property. He referred to an incident with a prowler. However, that was after the fence was installed.
Mr Kidd also said that the fence is not attached or fixed to property. Under s42 RTA a tenant must not affix any fixture to the premises, or make any renovation, alteration, or addition of or to the premises. Premises includes land.
While Mr Kidd has used temporary fencing panels, the fence has become more permanent and secure looking as the tenancy has progressed. It is arguable that the fence amounts to an alteration to the premises.
There was insufficient evidence from the landlord for me to make a finding in relation to this issue.

Should the Tenancy be Terminated?

I have found that the “no pets” clause is enforceable, and that Mr Kidd’s dog is a pet, and not a legally recognised disability dog.
It follows that it is breach of the tenancy agreement for the dog to live at the property. Mr Kidd has refused to remove the dog, so I must consider whether the tenancy should be terminated.
I find that the breach is of such a nature and extent that it would be inequitable to refuse to terminate the tenancy because, the size and fencing of the section are inappropriate for a dog. The landlord provided evidence of the dog having escaped even after the temporary fencing was installed.
Mr Kidd had owned the dog for some time when the tenancy started. The statement on the tenancy application that he did not have a pet was misleading. The landlord should have had the opportunity to consider the type and nature of the proposed dog at the premises.
Weighed against that, there is no evidence that the dog has caused damage to the premises.
Balancing those factors, I find that the tenancy should be terminated but that Mr Kidd should be given a reasonable timeframe to find alternative accommodation. The tenancy will terminate at 5pm on Friday 27 September 2024. The parties may end the tenancy earlier, by mutual agreement.
As the landlord was the successful party, I award the landlord reimbursement of the tribunal application fee.

Tenancy Tribunal case 4894660 — 14-day notice at Unit/Flat 1, 40A Hounslow Street, Ilam, Christchurch 8041

At a glance

Tenancy Tribunal case 4894660 — 14-day notice at Unit/Flat 1, 40A Hounslow Street, Ilam, Christchurch 8041

At a glance

Claims & awards

Order

Reasons

Is the Dog a Pet?

Should the Tenancy be Terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Is the Dog a Pet?

Should the Tenancy be Terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions