‘Ruff’ justice: How effective are covenants against pets in leases?

Solicitors in Kent

‘Ruff’ justice: How effective are covenants against pets in leases?

In January 2018 The High Court decided, on appeal from the Central London County Court, the case of Victory Place Management Company Limited v Kuehn & Anr.

In 2014 Mr and Mrs Kuehn purchased a leasehold flat in London. One of the covenants of their lease was that they must not keep any pets without the written consent of Victory Place Management Company. Despite this they had intended to and did move into the flat with their dog Vinnie. Mr and Mrs Kuehn sought permission from VPMC and in the course of doing so became aware that VPMC operated a strict ‘no pets’ policy save in special circumstances (for example guide dogs). Mr and Mrs Kuehn asserted that they required their dog for medical reasons and VPMC requested medical evidence to support this assertion but Mr and Mrs Kuehn did not provide any. VPMC refused permission and issued proceedings for an injunction to have the dog removed.

The application was successful in the county court. The Judge ruled that Wednesbury principles of reasonableness applied to how VPMC considered the request under the covenant but VPMC could not have been said to have applied an inflexible reason which predetermined the outcome of all applications to keep pets, rather it was a “legitimate predisposition to a particular point of view” (paragraph 54 of Bovis Homes Limited v New Forest District Council [2002] EWHC 483 (Admin)).

This decision was upheld by the High Court.

The key problem for the Kuehn’s in this case was that they had failed to provide the evidence of the ‘special circumstances’ that may have caused VPMC to allow them to keep their dog. However the Kuehn’s argued that their reasoning was irrelevant, that VPMC had already made their decision and the ‘blanket ban’ was evidence of this (an inflexible predetermination). The court did not agree. It was accepted by all parties that VPMC had to consider the request reasonably and VPMC had made clear throughout that the strict rule in place was to take account of the wishes of the majority of the lessees of Victory Place. This was ultimately considered to be a legitimate reason for refusing the request.

Covenants against pets in leases are incredibly common. This case sheds some light on the obligations of freeholders in reasonably considering requests for pets to be kept in properties. However what remains untested is the notion of ‘special circumstances’ and this begs the question: how ‘special’ do special circumstances have to be to defeat an otherwise legitimate blanket ban?

View full transcript of the High Court’s decision.