Barking up the wrong tree: Landlords aim to deal with nuisance animals

Article

27 May, 2010

The current trend for owning a pit bull-type dog as a 'status symbol' has led to an increase in the level of anxiety about such animals and is an issue which may become increasingly important for housing associations in the future.

Figures obtained by the publication Inside Housing from the Health and Safety Executive stated that there were six instances of dogs attacking housing and welfare officers in 2008/09 where the injured officer needed more than three days off work. This figure was equal to the number in the previous two years combined.

In recent months there have also been a number of reports in the national and local media of dogs attacking adults and children alike. Prior to the General Election, the Labour Government had created a consultation about making changes to the legislation relating to dangerous dogs, which included the potential for the compulsory micro chipping of all breeds.

There are, however, a number of avenues that can be considered by housing associations in their bids to tackle not only problematic dogs, but also other animals which cause nuisance to neighbours. This could be, for example, in the form of noise nuisance of fouling in communal areas.

Legal Proceedings: Possession

There have been cases in recent months where the courts have considered applications for possession due to tenants keeping animals at the property in question.

In Thomas-Ashley v Drum Housing Association [2010] EWCA Civ 265, the tenant appealed against a possession order which had been granted on the grounds that she had breached her tenancy agreement by keeping a dog at the property. She argued that the ban imposed by her landlord on keeping animals meant that it was impossible or unreasonably difficult to enjoy living at the property. She also stated that because she was disabled and the dog aided her recovery, the landlord's ban was both unlawful and discriminatory. The Court of Appeal dismissed Mrs Thomas-Ashley's appeal and said that it was her affection for the dog which meant that she could not enjoy the property, rather than the ban itself. It was noted that she had lived at the property for a significant amount of time before acquiring the animal. The court also said that Drum Housing Association had taken all reasonable steps open to them and that any change to the tenancy agreement (i.e. permitting the tenant to keep a dog) would have resulted in the landlord being in breach of their lease from the land owner.

A second case which considered the issue of a tenant keeping a pet was Joseph v Nettleton Road Housing Co-operative Limited [2010] EWCA Civ 228. In this case, the court was asked to decide how long was deemed to be reasonable enough to give a tenant to rectify a breach of the tenancy agreement, such as the keeping of a dog. Despite requests to the contrary, the tenant kept a dog at the property without the permission of the landlord. A possession order was granted and the tenant appealed against the decision to grant it, citing that possession was not a proportionate remedy in the circumstances. The Court of Appeal again dismissed the tenant's appeal. It held that the tenant's breach of the tenancy agreement was serious in nature as keeping an animal without consent showed a disregard of the interests of the landlord and of its members. Therefore it was held that the trial judge was entitled to find that the breach had been so serious so as to mean that the serving of the Notice to Quit (and the possession proceedings which followed) were proportionate. It was highlighted by the court that the tenant could have avoided eviction if he had removed the animal from the property and that he had been previously been given opportunities to do so.

There have been other recent examples, such as where it was reported that Oxford County Court granted a possession order to a housing association against a tenant who had kept 38 dogs at his three-bedroom semi-detached property. Such examples show that, in the appropriate circumstances, the courts may be willing to grant possession orders if the tenant is in breach of their tenancy agreement by keeping a pet.

Legal Proceedings: Injunctions

In other situations, it may be more suitable to consider applying for an injunction from the court. It is open to social landlords to seek an Anti Social Behaviour Injunction (ASBI) against a tenant if their pet is responsible for noise nuisance which breaches the tenancy agreement.

Under the Housing Act 1996, it is possible for social landlords to seek injunctions to prevent further breaches of the tenancy agreement. Such a remedy would be of potential use where the tenancy agreement in question has specific clauses preventing the keeping of animals. A court may grant such an injunction if it is considered that a tenant is engaging or threatening to engage in conduct that is capable of causing a nuisance or annoyance to any person, or allowing, inciting, or encouraging any other person to engage or threaten to engage in such conduct.

Statutory Nuisances

One of the most common forms of nuisance created by a dog is constant barking. Whilst complaints under this 'head' are dealt with by local authorities, prudent social landlords may still wish to be aware of their details. Under the Environmental Protection Act 1990, local authorities have a duty to take reasonable steps to investigate noise nuisance. If satisfied that such a nuisance exists, or is likely to occur or recur, an Environmental Health Officer must serve an abatement notice requiring the abatement or restriction of the nuisance. Failure to comply with the terms of the notice can lead to a maximum fine of £5,000 being imposed upon the individual.

Dog Control Orders

Introduced by the Clean Neighbourhoods and Environment Act 2005, dog control orders can be used by both local authorities and parish councils in relation to the following offences:

  • Failing to remove dog faeces;
  • Not keeping a dog on a lead;
  • Not putting, and keeping, a dog on a lead when directed to do so by an authorised officer (for example, dog wardens and PCSOs are included in this category);
  • Permitting a dog to enter land from which dogs are excluded; and
  • Taking more than a specified number of dogs onto land.

It is important to note that any land which is open to the air, or to which the public is entitled or permitted to have access, can be subject to a dog control order. When making such an order, a local authority must, amongst other things:

  • Be able to show that the order is a necessary and proportionate response to the problems associated with dogs in their area;
  • Balance the interests of dog owners against those affected by a dog's activities; and
  • Erect signs in the dog control area summarising the effect of the order.

A fixed penalty is available for breaches of a dog control order. The 'standard' amount is £75, but if the individual is prosecuted, they are liable to a fine of up to a maximum of £1,000.

Summary

Whilst it may not be possible to eliminate all the problems associated with animals being kept as pets, it is possible for organisations such as housing associations to take steps to minimise them.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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