MMP INVESTORS PTY LTD v BRUNNE (Residential Tenancies)

[2020] ACAT 52

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MMP INVESTORS PTY LTD v BRUNNE (Residential Tenancies) [2020] ACAT 52

RT 346/2020

Catchwords:               RESIDENTIAL TENANCIES – tenant seeking lessor’s consent to keep an animal on the premises – lessor applied to ACAT for refusal – whether premises is unsuitable to keep the animal – whether keeping the animal on the premises would result in unreasonable damage to the premises – where specific animal permitted, identifiable by microchip number – where Tribunal orders conditions for care and maintenance

Legislation cited:      Residential Tenancies Act 1997 ss 71AE, 71AF, 74

Tribunal:  Senior Member H Robinson

Date of Orders:  10 July 2020
Date of Reasons for Decision:         10 July 2020

AUSTRALIAN CAPITAL TERRITORY  

CIVIL & ADMINISTRATIVE TRIBUNAL           RT 346/2020

BETWEEN:

MMP INVESTORS PTY LTD

Applicant

AND:

JOSIAH BRUNNE

Respondent

TRIBUNAL:              Senior Member H Robinson

DATE:10 July 2020

ORDER

The Tribunal orders that:

1.The lessor is to consent to the tenant’s application to keep a dog on the premises with the following conditions:

(a)The dog must be the female Siberian husky with microchip number 991001003222975.

(b)The dog is to be exercised daily.

(c)The dog does not urinate or defecate on the apartment balcony.

(d)The dog is not to access the apartment balcony other than under supervision.

(e)The tenant is to obtain consent from the Midnight Owners Corporation and is to comply with the Corporation’s rules and policies in relation to the keeping of pets.

(f)The tenant must have the premises cleaned so as to remove dog hair upon vacating.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

Background

1.On 1 November 2019, amendments to the Residential Tenancies Act 1997 (the RT Act)[1] took effect, establishing a new scheme by which a tenant can seek a lessor’s permission to keep a pet in a rental property.

[1] Effected through the Residential Tenancies Amendment Act 2019

2.The relevant provisions are as follows:

71AE      Process for tenant seeking consent—animals

(1)     This section applies if, under a residential tenancy agreement, the tenant is required to obtain the lessor’s consent to keep an animal on the premises.

(2)     The tenant may apply, in writing, to the lessor for the lessor’s consent.

(3)     The lessor may refuse consent only if the lessor obtains the ACAT’s prior approval.

(4)     The lessor may impose a condition on consent—

(a)   if the condition is a reasonable condition about—

(i)        the number of animals kept on the premises; or

(ii)       the cleaning or maintenance of the premises; or

(b)   with the prior approval of the ACAT.

Note  A tenant may apply to the ACAT to resolve a tenancy dispute, including a dispute about whether a condition imposed under s (4) (a) is a reasonable condition (see pt 6).

(5)     The lessor is taken to consent to the tenant’s application under subsection (2) unless, within 14 days of receiving the application, the lessor applies to the ACAT under section 71AF.

71AF 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.

3.In summary, the amendments provide that, where the provisions apply, a lessor is not permitted to prohibit pets, but may include a clause requiring that the tenant seek the lessor’s permission before acquiring one. The lessor may consent or consent on conditions. However, if the lessor wishes to decline to grant approval, the lessor must seek the Tribunal’s approval pursuant to section 71AF(1) of the RT Act. The Tribunal may only make an order approving the lessor’s refusal to grant consent on one of the grounds set out in 71AF(3). The Tribunal may also impose conditions on any consent.

4.The Explanatory Statement to the Residential Tenancies Amendment Bill 2018 (No 2) clearly states policy behind the amendments as follows:

…the policy intention of the amendments relating to pet ownership is to make it easier for tenants to keep pets in rental properties.

And:

The purpose of this amendment is to provide an explicit pet-friendly presumption in the RT Act, while giving the lessor the opportunity to be consulted.

5.In this case, the tenant wishes to acquire a female Siberian husky puppy. The puppy is currently with the tenant’s father in Queensland.

6.The director of the lessor company is not averse to pets generally, but is opposed to a large, thickly furred dog such as a husky. The lessor’s agent, who represented it at the hearing, stated that the director was concerned for both the welfare of a larger dog, and the damage that may be caused to the unit by the dog’s presence.

7.The grounds of refusal that are relevant to this case are 71AF(3)(a) and (b) – that is being that the premises are unsuitable to keep the animal and keeping the animal on the premises would result in unreasonable damage to the premises.

Is the premises unsuitable to keep the animal?

8.Section 74(3)(a) of the RT Act requires consideration of whether the premises are suitable ‘to keep the animal’.

9.The use of ‘the’, the definite article, directs attention to whether the subject premises is unsuitable for the animal. It requires a consideration of both the nature of the rental property and the animal that the tenants wish to keep in it.

10.The premises in issue is an apartment in a development in Braddon. The apartment has a living area, a segregated bedroom area,[2] a bathroom and a balcony. It is on the third floor of the building. I have no evidence as to the precise dimensions of the premises, but the parties agree it is not large. The complex itself has a pet policy.

[2] There was some dispute as to whether the apartment was truly a one bedroom or a studio apartment, but ultimately, I do not think this matters

11.The tenant resides in the premises with his partner.

12.An apartment in a multi-story building may not be an ideal home for an active dog, but many people can and do keep pets in apartments. The fact the premises is an apartment, and indeed a small apartment, is a relevant consideration, but is not decisive.

13.Consideration must also be given to the dog, and how she would be accommodated within the premises.

14.In a general sense, a husky is not an ideal breed for apartment living. The tenant concedes as much himself. Huskies are larger dogs, over 20 kg, with high energy needs and a tendency to howl when bored. They have a thick coat that sheds fur. These traits make them, in abstract, less suitable for apartment living than many other breeds.

15.However, the legislation requires that I look not just at the breed in abstract, but at the animal in question (at least where the dog is identified). In this case, the tenant has attempted to address the lessor’s concerns about the breed. I will deal with these one by one.

16.First, toileting needs. While all dogs have toileting needs, bigger dogs produce greater waste. This must be disposed of. The lessor notes that the apartment has only a small balcony and submits that allowing the dog to urinate or defecate on the balcony will potentially damage the tiles. The tenant does not dispute this. However, his evidence is that the dog in question is trained to use an indoor dog toilet. This, he says, can be placed in the bathroom, where the waste can be disposed of down the toilet and in accordance with the complex’s pet waste policy. In the circumstances, I am satisfied that the balcony concern has been addressed. Otherwise, given the use of the pet toilet, the husky is not necessarily any less suitable than any other dog.

17.Second, there is the related issue of the danger posed by the balcony. In addition to concerns about damage to the tiles, the lessor is worried that, even if supervised on the balcony, the dog may jump from it. Evidence before the Tribunal suggests huskies are jumpers. Accordingly, a third story apartment with a balcony may be a risk with such a dog. However, the tenant has stated that they will keep the balcony door closed, and the dog inside, unless he supervises her. I am not convinced this is a particularly attractive solution, particularly in summer. The tenant will be reliant upon the air-conditioning and limited in his ability to enjoy his balcony. However, the situation is not an unmanageable one.

18.Third, there are concerns about the dog’s comfort. As a large dog, a husky requires considerable space to stretch and move and walk. I have some doubt as to whether a smaller one-bedroom apartment would meet the dog’s needs in this regard. However, the tenant’s evidence is that his partner and he have an active lifestyle and will exercise the dog at least daily, if not twice daily. The tenant submitted that there are two dog parks within walking distance of the apartment. Additionally, the proposed dog is crate trained and has been raised in an apartment, having lived in one her entire short life. While I have some concerns about the space issue, I accept that the dog can live comfortably in an apartment environment if exercised regularly, indeed daily, in the manner proposed by the tenant. I am satisfied she has been trained to do so.

19.Fourth, there is the question of the dog howling. There is some evidence before the Tribunal which suggests huskies are prone to barking or howling when bored. A large dog in a small apartment may well be bored. However, the only evidence I have to this dog’s behavioural tendencies is that of the tenant, who says that the dog has been raised for apartment living and does not bark or howl when left alone. The tenant’s further evidence is that he is currently studying from home and therefore the dog is unlikely to be left at home, alone, for considerable periods of time anyway. This addresses those concerns, at least in theory.

20.Beyond the possibility of barking, there is no evidence before the Tribunal that the dog’s presence in the building would cause unreasonable stress or inconvenience to other residents.

21.In terms of the overall welfare of the dog, I am also cognisant that the animal will be living in an apartment building in any case. Moreover, the dog has been bred by the tenant’s parents, currently resides with his father in an apartment building, and will be able to be rehomed with or by the tenant’s father should she prove unsuitable for apartment living.

22.As set out above, the legislation is clearly intended to make it easier for tenants to keep pets in rental accommodation. The question is whether this dog is unsuitable for this apartment. It is the lessor who is seeking an order approving its refusal of consent to keeping the dog, and therefore to the extent that there can be said to be an onus, it lies on the lessor to convince me that I should exercise my discretion to make the order it seeks.

23.For the reasons set out above, I have some doubts about whether this arrangement is a practical one, particularly for the long term. However, what I am presented with is a husky puppy that is:

(a)raised in an apartment environment;

(b)crate trained;

(c)trained to use an indoor dog toilet;

(d)not inclined to howling and barking; and

(e)to be exercised daily by an active, young couple, at least one of whom is an experienced dog owner.

24.Having regard to all the information available, and whatever my concerns about the practicality of this arrangement in the long term, and the suitability of huskies for apartments more generally, I cannot be satisfied that this premises is inherently unsuitable for this particular dog.

Unreasonable damage to the premises

25.The second issue is one of potential damage.

26.The lessor is concerned about the possibility of additional damage to the apartment caused by the presence of a large animal, in addition to two humans. These concerns are not idle or unreasonable. There could be no doubt that a dog could cause damage to the apartment by its presence, and a bored, large, strong dog even more so.

27.Importantly, however, the test applied by the legislation is a strict one – it requires that I be satisfied that keeping the animal on the premises would result in unreasonable damage to the premises, not that it could. The test to be imposed is the ‘balance of probabilities.’ Again, to the extent there is an onus, it is for the lessor to establish, on the balance of probabilities, that this test is met and that I should exercise my discretion. As set out above, the lessor pointed to several bases upon which the presence of the dog may cause unreasonable damage.

28.The lessor pointed to the likelihood of damage to the tiles of the balcony should the dog urinate on the balcony. Although there is no independent evidence before the Tribunal, I accept that the dog urinating on the balcony may damage it. However, the tenant says that the dog will not be urinating on the balcony, and that the dog is trained to use a dog toilet, which he will place in the bathroom. This addresses the balcony damage concern.

29.The lessor may well have grounds to be concerned about the smell that would be caused by this arrangement, particularly as the bathroom door will presumably be required to be left open so that the dog can access the bathroom. However, no evidence was presented on this point either way. The premises is in a new building, with ventilation in the bathrooms that may moderate the risk. The tenant is required to return to property in the same state of cleanliness as when he moved in. I cannot be satisfied that the damage would be unreasonable and incapable of rectification.

30.A perhaps more significant problem is that the dog will also shed significant hair. I have no evidence as to whether there are carpets or curtains in the apartment, but I accept that removing dog hair from the apartment may be challenging and expensive. However, the tenant is already obliged to return the apartment in the same state of cleanliness as when he moved in. The Tribunal will require that the tenant have the premises cleaned, likely professionally, to remove dog hair upon vacating. However, this is not, of itself, unreasonable damage that cannot be repaired.

31.There is no evidence that this dog will chew or otherwise be unreasonably destructive, and evidence from the tenant is that she will not.

32.Again, the onus is on the lessor to establish that the dog would cause unreasonable damage. While accepting that some wear and tear is likely inevitable, as any apartment must be lived in, there is no evidence or suggestion that the damage would not be capable of being remediated. If beyond reasonable wear and tear, the remediation would be at the tenant’s expense. This ground has not been made out.

Conclusion

33.This is borderline case. The tenant and his partner live in a small apartment and wish to keep a large, active dog. The lessor is opposed to the proposal and its concerns about the welfare of the animal and the potential for damage are not unreasonable or without cause. In the usual course, there would be a strong argument that a large, particularly thick coated dog known for its high energy, and potential howling and barking when bored, would be unsuitable for a small apartment.

34.Ultimately, however, the question before the Tribunal is simply whether the lessor has made out any of the grounds in section 71AF(4) of the RT Act. The lessor has legitimate grounds, but the tenant has addressed those concerns.

2.Accordingly, I decline the lessor’s application for permission to decline the tenant’s request to keep an animal. The lessor is to consent to the tenant’s application to keep a dog on the premises with the following conditions:

(a)The dog must be the female Siberian husky with microchip number 991001003222975.

(b)The dog is to be exercised daily.

(c)The dog does not urinate or defecate on the apartment balcony.

(d)The dog is not to access the apartment balcony other than under supervision.

(e)The tenant is to obtain consent from the Midnight Owners Corporation and is to comply with the Corporation’s rules and policies in relation to the keeping of pets.

(f)The tenant must have the premises cleaned so as to remove dog hair upon vacating.

35.This decision applies in relation to this tenant, this premises and this particular dog. Other applications involving active or working dogs in small apartments would need to be considered on a case by case basis.

……………………………………………..

Senior Member H Robinson

36.

HEARING DETAILS

FILE NUMBER:	RT 346/2020
PARTIES, APPLICANT:	MMP Investors Pty Ltd
PARTIES, RESPONDENT:	Josiah Brunne
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 May 2020