FALCONE v MORRIS (Residential Tenancies)
[2020] ACAT 84
•3 September 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FALCONE v MORRIS (Residential Tenancies) [2020] ACAT 84
RT 540/2020
Catchwords: RESIDENTIAL TENANCIES – tenant seeking lessor’s consent to keep an animal on the premises – lessor applied to ACAT for refusal – whether keeping animal on the premises would result in unreasonable damage or significant hardship – where premises are furnished – greater potential for damage than unfurnished – concept of unreasonable – reasonable person – duration of tenancy – lessor’s application to refuse consent approved
Legislation cited: Residential Tenancies Act 1997 s 71AF standard term 64
Residential Tenancies Amendment Bill 2018 (No 2)
Cases cited:Hall v. Brooklands Auto-Racing Club [1933] 1 KB 205
MMP Investors Pty Ltd v Brunne [2020] ACAT 52
Re Sortirios Pandos and Commonwealth of Australia[1991] AATA 18
Tribunal: Senior Member H Robinson
Date of Orders: 3 September 2020
Date of Reasons for Decision: 15 October 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL RT 540/2020
BETWEEN:
LISA FALCONE
Applicant
AND:
GEORGIA MORRIS
Respondent
TRIBUNAL: Senior Member H Robinson
DATE:3 September 2020
ORDER
The lessor’s application for approval of its refusal to allow the tenant’s application to keep an animal on the premises is approved.
……………Signed…………..
Senior Member H Robinson
REASONS FOR DECISION
This is an application by the lessor for an order approving the lessor’s refusal of the tenant’s application to keep an animal on the premises.
I heard the application on 28 August 2020 and delivered my decision in the matter 3 September 2020. On that date I advised the parties that I would publish reasons. These are those reasons.
The parties’ names
By reason of the respondent’s employment, the parties’ names have been anonymised.
The premises
The applicant is the lessor of an apartment in Braddon (the premises).
The premises consist of 64 square metres of internal living space, with a living area, bedroom, and small courtyard. The premises are located in a pet friendly building. They are leased fully furnished.
The animal
The tenant seeks the lessor’s consent to keep a cavoodle puppy. A cavoodle is a mix of a toy or miniature poodle and King Charles spaniel. It is a smaller sized dog with a thick coat.
The parties agree that the puppy will not be housetrained or otherwise trained at the date that it is adopted.
The tenant
The tenant leased the apartment on 6 June 2020, for a fixed term period of six months. The tenant requested the shorter than usual fixed term period as she intends to move back into her own apartment, which is currently leased to another person, when the leases expire.
The tenant’s original intention was to acquire a dog once she returned to her apartment, however a cavoodle puppy has recently become available, and this has brought the intended timeframe forward.
Additionally, due to the COVID-19 emergency, the tenant is currently working from home, and as such considers this to be a particularly opportune time to acquire, and train, a pet. She further submitted that the pet would assist with her health and welfare while isolated and working from home.
The law
Section 71AF of the RT Act provides that:
Lessor to apply to ACAT for refusal—animals
(1) A lessor may apply to the ACAT for an order approving—
(a) the lessor's refusal of the tenant's application under section 71AE(2) to keep an animal on the premises; or
(b) a condition on the lessor's consent to the tenant's application.
(2) The ACAT must—
(a) approve the lessor's application; or
(b) refuse the lessor's application; or
(c) order that the lessor consent to the tenant's application but impose stated conditions on the consent.
(3) The ACAT may make an order under subsection (2) (a) or (c) if satisfied—
(a) the premises are unsuitable to keep the animal; or
(b) keeping the animal on the premises would result in unreasonable damage to the premises; or
(c) keeping the animal on the premises would be an unacceptable risk to public health or safety; or
(d) the lessor would suffer significant hardship; or
(e) keeping the animal on the premises would be contrary to a territory law.
Section 71AF came into effect on 1 November 2019. The Explanatory Statement to the Residential Tenancies Amendment Bill 2018 (No 2), pursuant to which this provision was enacted, clearly states the policy behind the amendments is:
... to make it easier for tenants to keep pets in rental properties.
And:
…. to provide an explicit pet-friendly presumption in the RTA, while giving the lessor the opportunity to be consulted.
Under the legislation, the onus is on the lessor to persuade the Tribunal that approval of the lessor’s application for refusal is appropriate. This means that the lessor must establish that one of the grounds under section 71AF(3) of the RT Act is made out before the tribunal may make an order approving the lessor’s refusal to consent to the pet.
The lessor in this case asks that the Tribunal approve the lessor’s application on one of two basis:
(a)the keeping of the animal would result in unreasonable damage to the premises; or
(b)the lessor would suffer significant hardship, being delays in getting a tenant due to having to rectify damage at the end of the lease.
The arguments
There is no suggestion that the premises are generally unsuitable to keep an animal. The apartment, located as it is in a pet friendly building, and having a small courtyard, are suitable premises for the keeping of a dog.
A cavoodle is a suitable breed of dog for an apartment.
The contention put by the lessor was that the keeping of this animal on the premises would result in unreasonable damage to the premises, by reason particularly of the animal’s age, and unreasonable hardship, by reason that the fixed term period of the lease was almost at an end, and if would be difficult to show the show the property with any damage extant, or repair the damage sufficiently quickly to allow the property to be relet with minimal downtime.
The lessor argued that there would be unreasonable damage, because the untrained puppy would inevitably urinate on the floors or the furniture and may also scratch or bite at furniture while being trained or while teething. The lessor further contended that the animal may urinate on carpeted areas of the floor and that returning the carpet to the same state that it had been prior to the tenancy, minus fair wear and tear, would be impossible.
In response to the tenant’s offer that the lessor remove the furniture, to ensure that was not damaged, the lessor argued that she would then not be able to display the property in a furnished state at the end of the lease, which is one of basis upon which it is marketed.
For her part, the tenant conceded that the puppy would likely have toileting accidents before being housetrained, including likely urinating on the tiles or the courtyard. She also conceded that damage may result to carpet and furniture. However, she suggested that any damage caused would not be unreasonable, and she would compensate the lessor for it.
The tenant also gave evidence about the steps she would take to mitigate this damage. She said that she would be in a good position to train and supervise the puppy. She stated that she has experience with training puppies, and because she is working from home, she will be able to ensure close supervision while doing so. She agreed that she may have to leave the puppy on the premises for a short period of time, but submitted that the apartment had a tiled bathroom area and courtyard where the dog could be kept in the event that she had to go out.
The tenant said that she had investigated carpet cleaning services and was assured that dog urine stains could be dealt with by professional cleaners. She was prepared to pay for that cleaning, meeting whatever cost needed to be met to return the carpets to the same state of cleanliness as when she moved in. Financial information provided to the Tribunal confirmed that she was able to do so.
I did not accept the tenant’s evidence that all damage to the carpets caused by dog urine could be remediated by ordinary carpet cleaning, but I was satisfied that other remedies, including specialist cleaning or replacement, were certainly options, albeit they came at a cost. I generally accepted that most of the rest of the damage that would be caused by the puppy was capable of remedy by way of the payment of compensation. I was satisfied that the tenant would be able to afford the compensation. The question was whether this damage was ‘unreasonable’.
What is ‘unreasonable’ damage?
In the only other published decision under section 71AF of the RT Act,[1] I refused to grant the applicant lessor approval to refuse to consent, because in that case I could not be satisfied that the dog would cause unreasonable damage to the premises. The dog in question, an older puppy, was house trained, crate trained, and used to living in an apartment.[2] The puppy in this case is none of those things. Unlike that case I can be satisfied that this puppy will cause damage.
[1] MMP Investors Pty Ltd v Brunne [2020] ACAT 52
[2] MMP Investors Pty Ltd v Brunne [2020] ACAT 52 at [23]
The tenant’s obligation is to leave the property in the same condition as the premises were in at the commencement of the tenancy agreement, excepting fair wear and tear.[3] Some wear and tear on a property is inevitable. Where pets are involved, there is an increased risk of damage beyond fair wear and tear. In this case, where a puppy is involved, that risk was even higher. Were the tenant permitted to keep the puppy, some degree of damage is, on the balance of probabilities, inevitable.
[3] Standard Residential Tenancy Terms, clause 64
There is no definition of ‘unreasonable damage’ in the Act.
‘Reasonableness’ is a term often used as a touchstone in law, but it can be a difficult concept to grasp in practice. Reasonable according to whom? Law students are introduced to the concept of ‘the man on the Clapham omnibus’, a hypothetical person referenced by Lord Justice Greer in Hall v Brooklands Auto-Racing Club,[4] or to the slightly more Australian ‘man on the Bourke Street tram’[5], which effectively look to what a person of good sense, possessed of the relevant facts, would consider acceptable. However, an objective test of that nature is particularly difficult to apply in this case, where there is much scope for people of reasonable minds to have different tolerances for the risk and damage that pets may cause.
[4] [1933] 1 KB 205
[5] Re Sortirios Pandos and Commonwealth of Australia[1991] AATA 18
What can be concluded in this case is that, should the lessor be required to allow the pet, then damage will be caused to the floors from dog urination. The damage will require repair. This will take time, and money, and have consequences for the reletting on the apartment.
None of this is unusual. However, a significant distinguishing consideration is the short duration remaining on the lease, something requested by the tenant. The tenant will likely be vacating at the end of the year and the lessor will want to find another tenant. The integrity of the carpets and the furniture will likely be important to doing that efficiently.
In this case, the period of time in which the puppy is likely to cause damage is likely to be spread over the final four months of a short, six-month lease. Any consideration of reasonableness must take that short duration into consideration. This consideration would not be as significant in a longer lease, where the tenant intends to make the property their home for a more considerable period of time, and where there is not imminent need for the lessor to find a replacement tenant.
Another consideration in this case is that the property is fully furnished, and the potential for damage is much greater than it would be for an unfurnished apartment.
Having regard to those facts, I am satisfied that the damage that would result from keeping a puppy would be unreasonable, having regard particularly to the short term nature of the arrangement between the parties, and the potential damage that could occur in the limited period of time left in the arrangement.
Having decided that 71AF(3)(b) is established, I do not need to consider whether the owner would suffer significant hardship.
I approve the lessor’s application for approval to refuse the tenant’s application for a pet.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER: | RT 540/2020 |
PARTIES, APPLICANT: | Lisa Falcone |
PARTIES, RESPONDENT: | Georgia Morris |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member H Robinson |
DATES OF HEARING: | 26 August 2020 |
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