Shindy & Anor v Antcliff & Anor (Residential Tenancies)

[2023] ACAT 53

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SHINDY & ANOR v ANTCLIFF & ANOR (Residential Tenancies) [2023] ACAT 53

RT 733/2023

Catchwords:               RESIDENTIAL TENANCIES – application to approve lessors’ refusal of a tenant’s application to keep a dog in a newly built house – where according to the lessors’ genuine religious beliefs a dog is considered haram (i.e. forbidden by Islamic law) because it is an unclean animal and should not enter (or live inside) a house – where the lessors built the house intending to live in it as their permanent home – whether the lessor would suffer significant hardship if the tenants were permitted to keep a dog in the house – whether appropriate to order the lessor to consent to the tenants’ application on stated conditions – lessors’ application approved

Legislation cited:        Residential Tenancies Act 1997 s 71AF

Tribunal:Senior Member M Orlov

Date of Orders:  25 August 2023

Date of Reasons for Decision:      14 September 2023

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 733/2023

BETWEEN:

MONA SHINDY

First Applicant

MOHAMAD MOUKAHAL

Second Applicant

AND:

WARWICK ANTCLIFF

First Respondent

SUNITHA DONOHUE

Second Respondent

TRIBUNAL:Senior Member M Orlov

DATE:25 August 2023

ORDER

1.The lessors’ application dated 26 July 2023 is approved.

……………Signed………..

Senior Member M Orlov

REASONS FOR DECISION

1.This is an application under section 71AF of the Residential Tenancies Act 1997. The section provides that a lessor may apply to the tribunal for an order approving the lessors’ refusal of a tenant’s application to keep an animal on the premises, or a condition on the lessor’s consent to the tenant’s application.

2.In this case, the tenants, when they entered into the residential tenancy agreement, gave notice that they wished to keep a cat on the premises and were given that permission. They have, however, now sought the lessors’ permission to keep a dog, which I understand is a Cavoodle puppy.

3.The lessors have refused the request and have applied to the tribunal for an order approving their refusal of the tenant’s application. The lessors have not proposed any alternative that the tenants be permitted to keep the dog but on certain conditions.

4.This is, in some respects, an unusual case. The lessors are a Muslim family. The house is a newly constructed house. This is the first time the house has been rented. For reasons that are not presently material, the lessors have had to relocate to Sydney but are hopeful – and it is their present intention – that either they, their family, or relatives, who are also Muslim, ultimately be able to move back and live in the house. Having listened to Ms Shindy, one of the two lessors, give evidence, I am satisfied that her evidence is given frankly and that this is not a situation that the Tribunal sometimes sees where lessors seek to erect spurious arguments to avoid a tenant exercising their statutory right to keep an animal in rented premises.

5.The relevant ground on which the lessor relies is in section 71AF(3)(d). That requires the tribunal to be satisfied that the lessor would suffer significant hardship if a dog was allowed to be kept on the premises. It is important to identify what the significant hardship is. The essential thrust of the lessor’s application and the basis for their refusal is that in their beliefs as Muslims, a dog is an unclean animal and, so far as they are concerned, they would not keep a dog in the house, and they consider that keeping a dog in the house would affect their ability to enjoy the house when and if they move back in. This is notwithstanding they accept that the house may be professionally cleaned at the end of the tenancy, as would be normal and possibly more elaborate measures to clean the house might be taken.

6.However, the issue here is not one which involves hardship in cleaning of premises.  At the end of the day, premises may be cleaned once, twice, three times, seven times if need be. To a person of a different faith, or of no faith, one may be satisfied that in an objective sense the premises are clean. But persons of faith may hold genuine beliefs that are not shared by persons who are not of that faith and are not necessarily susceptible to logical and critical analysis.

7.I have no doubt that the premises could be cleaned in a way that, to someone who is not of the Muslim faith, would result in premises that objectively are clean. But that is not, as I understand it, the significant hardship that the lessors will face in this case.

8.Their religious beliefs mean they will always harbour genuine doubts about the cleanliness of the house based on the fact that it has been occupied by an unclean animal. To them, their home can never be the same again. That is a real, not imagined, disadvantage and is not overcome by thoroughly cleaning the premises.

9.Now while the tenant, having done some research on the matter, has identified what might be described as a ‘practical approach’ to cleaning the premises that may be satisfactory to some persons of the Muslim faith, I accept Ms Shindy’s evidence that this approach does not accord with her and her family’s beliefs.

10.I am satisfied that allowing a dog to be kept on the premises would operate as a significant intrusion on the lessors’ personal and religious beliefs. There is no suggestion that those beliefs are not honestly held. Indeed, I am satisfied that they are. There is no suggestion that those beliefs are irrational. They may not necessarily be beliefs that are held universally by persons of the Muslim faith. But I am satisfied that the lessors have this belief, that it is a rational belief and that it is one which is not capable of being satisfactorily overcome by the imposition of a condition on approval to keep a dog.

11.At the end of the day, it is necessary to balance the statutory right of a tenant to keep an animal at the premises with the permission of the lessor and on the other hand a lessor’s right to refuse that consent in appropriate circumstances. Generally speaking, that balance, from a statutory point of view, is tipped in favour of the tenants. In this case, however, I am satisfied that this is a clearly appropriate case where the lessors’ application should be allowed for the reasons I have given. Accordingly, I uphold the lessors’ refusal of consent.

………………………………..

Senior Member M Orlov

Date of hearing:

25 August 2023

Applicants:

First applicant joined in remotely

J Yang, authorised representative

Respondents:

In attendance