27. March 2013
In a recent judgment by a court in Germany it was held that it is legal for tenancy agreements to require tenants to obtain a landlord’s permission to keep pets in a rented apartment. The landlord may only withhold consent if the pets would cause damage to the apartment or be a nuisance to other tenants.
Residential leases and cat ownership
The defendant in this case was a lady from Munich who was renting a small apartment with one and a half rooms. After the tenancy had commenced, she purchased two cats. To protect the animals, she hung a protective net across the balcony.
With the exception of small animals, the tenancy agreement contained a clause which required the tenant to obtain the landlord’s consent before keeping pets in the apartment.
The landlord’s position
The landlord took the view that keeping cats in an apartment of 33qm was not appropriate. He asserted that the cats were constantly in the flat and that they had the potential to ruin the carpet with their paws, faeces and urine.
He also complained that the tenant had caused a nuisance by repeatedly disposing of cat faeces in the compost bin.
The landlord further argued that the net across the balcony, which was clearly visible from outside the building, was an unsightly blemish on the façade of the building.
The tenant’s position
The tenant argued that the small cats caused no damage to the flat. She produced evidence of veterinary research to show that the flat was suitable for keeping the type of cats in question, as they predominantly slept.
The tenant also argued that the protective net which had been professionally installed was thin and not visible from the outside of the building. As a result, she should not be forced to remove it.
The court’s decision
The court allowed the landlord’s claim in part.
The judge held that clauses in tenancy agreements requiring a landlord’s consent to be obtained before keeping animals in a rented apartment are valid. However, there must not be a general prohibition on keeping animals and consent need not be sought if small animals are to be kept.
The court agreed with the tenant that certain types of cats can be kept inside, especially where they have access to a food bowl, bed, litter tray and a cat stand.
Accordingly, the landlord may only withhold consent to keeping animals in a rented apartment if there is a risk that the animals will cause damage or be a nuisance to other individuals.
In the current case the cats had been kept in the apartment. As a result, they were not creating a nuisance for the other tenants in the building or the landlord.
The landlord brought no evidence that the cats had caused damage to the carpets with their claws, faeces or urine, and as a result this assertion was unfounded. The landlord also failed to adduce evidence that the tenant had disposed of cat faeces in the compost waste.
The tenant was, however, ordered to remove the protective net from the balcony as it represented a visual nuisance which the landlord was not obliged to accept. If the landlord were to permit the use of such nets, it would lead to all tenants erecting them, which would in turn be unsightly.
The fact that tenancy agreements must not contain strict prohibitions on the keeping of animals was clarified by the German Supreme Court (Bundesgerichtshof) in a decision dated 20.03.2013 (VIII ZR 168/12).
The current case shows that all circumstances must be taken into consideration. A landlord can refuse consent to the keeping of animals if there is a risk they will cause damage to the property or be a nuisance.
This conclusion achieves a suitable balance between a tenant’s right to freely enjoy use of a rented apartment, protecting a landlord’s reversionary interest and protecting the interests of other tenants.
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Categories: Property Law