Agents Beware: New Rental Laws Regarding Pets

New rental laws regarding pets

By: Mark Skermer, Principal MST Lawyers

As most real estate agents know, the landscape in Victoria in relation to having a pet at a rental property is about to undergo real change.

As and from 2 March 2020, it will become easier for a tenant (or a proposed tenant) of a residential rental property in Victoria to have a pet or pets at the property. The Residential Tenancies Amendment Act 2018 (Vic) (“the Act”) is the relevant legislation.

The amendments are significant for a number of reasons.

Firstly, a pet is defined in the Act as any animal save for an assistance dog.

Secondly, a renter requires landlord consent before being able to have a pet at the property.

Thirdly, consent on the part of the landlord must not be unreasonably withheld. Given that the intent of the law is to make it easier for tenants to have pets at rental properties, my own view is that there will be limited circumstances where permission to have a pet at a property can be reasonably refused. One example might be if a property backs onto a river and there is no fence which would protect the animal from drowning. Another example might be close quarters apartment accommodation and the tenant wishes to have a breed of dog well known for loud barking. A third example might be if the property has delicate, historical or expensive appliances and/or furnishings.

Fourthly, the onus lies with the landlord to establish that the withholding of consent is reasonable. In other words, if a landlord refuses consent, the landlord must then take action in VCAT seeking Orders.

The original legislation was intended to be drafted as imposing this requirement upon the tenant. The final legislation reverses the onus however. The landlord must now pay the filing fee and run the application seeking a VCAT Order that the refusal is reasonable.

What is and what is not reasonable for the purpose of consent is likely to be determined on a case by case basis by VCAT. The legislation contains some guidance on this topic and directs VCAT to consider the type of pet, the character and nature of the property, the character and nature of the fixtures and fittings amongst other matters when considering this issue.

My initial expectations are that VCAT will require agents to meet a high standard of proof regarding why it is not reasonable for a pet to be at a property.

The important takeaway for agents in relation to this issue is that pets will now become a more pronounced part of rent roll management and the changes will likely mean more litigation between landlords and tenants. Landlords will expect agents to appear at these hearings and prosecute their interests in a bid to avoid having pets at certain properties.

MST Lawyers would be pleased to assist in any pet related matters facing agents and landlords, both from an advice and advocacy perspective. Please contact Mark Skermer, Principal, to discuss further on (03)85400200.

Mark Skermer is the current Chairperson of the Estate Agents Council.