Leaseholders in the doghouse !! Prohibition on keeping pets in a leasehold property – are these enforceable?

Victory Place Management Company Limited v Florian Gunter Kuehn and Gabrielle Maria Kuehn (Appeal No. CH-2017-000072 [ 2018 ] EWHC 132 (Ch)High Court of Justice – Chancery Division (on appeal from The County Court at Central London)

Summary

The Defendants were tenants under a long lease of an apartment in Victory Place, Limehouse. The lease prohibited the tenants from keeping pets following a majority view of the other residents.

The tenants sought consent from the management company ("VPMC") to keep their dog in the apartment. Consent was refused. The tenants argued that VPMC had acted unreasonably.

The facts

Victory Place comprises 146 flats/maisonettes in a gated residential development in Limehouse. The lease in question was granted in February 1998 and was assigned to the Defendants, Mr and Mrs Kuehn, in September 2014. The lease contained the following covenant:

"No dog, bird, cat or other animal or reptile shall be kept in the [Property] without the written consent of [VPMC]."

Mr and Mrs Kuehn sought consent from the actual landlord of Victory Place and this was granted on 18 September 2015. However, the covenant was also enforceable by VPMC, being the management company which represented the other residents.

It was clear from the evidence that between 2002 and 2014, VPMC enforced a strict "no pets" policy as this was the majority view of the lessees. Consequently, VPMC followed this policy with Mr and Mrs Kuehn and made clear to them at a meeting on 9 September 2015 that they would not be allowed to bring their pet dog, Vinnie, to live with them in the apartment following alterations that were being carried out.

There ensued further correspondence between VPMC's solicitors and Mr and Mrs Kuehn's legal advisers. VPMC made it clear that they would reconsider if there were any "special circumstances" and invited Mr and Mrs Kuehn to provide details of such circumstances, supported by medical evidence. No such evidence was forthcoming, although Mr and Mrs Kuehn did say that the dog was required for "therapeutic reasons" and that Vinnie was helping Mr and Mrs Kuehn "clinically".

Following Mr and Mrs Kuehn's refusal to remove Vinnie from Victory Place, proceedings were issued by VPMC requiring the removal of Vinnie from Victory Place.

The law

The case was first heard by the County Court at Central London and a judgment was given in favour of VPMC. However, Mr and Mrs Kuehn were not satisfied and appealed to the High Court.

On appeal, the High Court had to decide whether the so called "Wednesbury principles" applied to the covenant. The Wednesbury principles derive from public law and apply to decisions made by public bodies, but principles can also apply in private law matters. Essentially, there are two limbs:

VPMC was obliged only to take into account matters that it ought to take into account and not to take into account matters which ought not to be considered – the so called "process" requirement; and
VPMC should not come to an unreasonable or irrational decision – the so called "outcome" limb.

As it happens, Mr and Mrs Kuehn only pursued the first limb on appeal and argued that VPMC had taken irrelevant matters into account, in effect the strict no pets policy.

The High Court agreed with the County Court that the so called Wednesbury principles should apply to the covenant. Applying to these particular facts, Mr and Mrs Kuehn argued that the strict no pets policy meant that this was an "inflexible rule" which predetermined the outcome of all applications and, for that reason, they ought not to have taken the no pets policy into account.

As with the County Court, the High Court disagreed for the following reasons:

although VPMC were enforcing a policy, they made it clear on at least two occasions that they would not allow pets except in special circumstances;
this means that they were open to taking into account other matters and they had also given a specific example in respect of a guide dog;
the "no pets" policy did not constitute a predetermination of any application, bearing in mind they were prepared to consider special circumstances;
it was reasonable to take into account the policy set by the majority of the lessees as members of VPMC and, therefore, this was a very relevant consideration.

Our comments

Although pet lovers will be disappointed by this decision, it does reinforce the general position that the majority rule in such developments. It is important, therefore, to be aware of all such regulations when acquiring property and not assume that a special exception will be made unless there are extenuating circumstances.