Renting with pets in SA

IN THE DOG HOUSE? RENTING WITH PETS IN SA

RENÉE EVANS, SENIOR SOLICITOR, CROWN SOLICITOR’S OFFICE & MEMBER, ANIMAL LAW COMMITTEE

Finding a suitable rental property to call home can be a stressful and difficult process at the best of times, but even more so for a prospective tenant with a pet.

The law concerning pets and the rights and obligations of residential tenants (prospective and existing), landlords, and strata and community title owners can be complex. Below I consider some of the common questions and issues regarding pets in rental properties, by reference to the relevant legislation in South Australia.

WHAT IS A PET?

Currently, the term ‘pet’ is not defined in the Residential Tenancies Act 1995. In its submission on the Residential Tenancies (Renting with Pets) Amendment Bill 2020 (the Bill), the Society (informed by the Animal Law Committee) suggested including a definition in the Bill to provide clarity and distinguish ‘pet’ animals from various other animals defined in legislation, in particular assistance dogs and therapeutic animals.1 The Bill was negatived by the Legislative Council on 31 March, 2021.

THE LANDLORD’S DISCRETION?

A landlord can refuse a tenancy based solely on the prospective tenant owning a pet, unless the animal in question is a therapy or assistance animal.

An ‘assistance animal’ is a dog that is an accredited assistance dog under the Dog and Cat Management Act 1995 (SA), or an animal of a class prescribed by regulation.2 Pursuant to section 66(e) of the Equal Opportunity Act 1984 (SA), it is unlawful to discriminate on the grounds of disability by treating a person with a disability unfavourably because the person possesses, or is accompanied by, an assistance animal, or because of a related matter.3 This provision will apply in the context of rental property applications. Refusing an application for a rental property on the basis that the applicant has an assistance animal and that animal is to be kept on the rented premises is unlawful.

A ‘therapeutic animal’ is an animal certified by a medical practitioner as being required to assist a person as a consequence of the person’s disability, or an animal of a class prescribed by regulation.4 It is unlawful to refuse an application for accommodation (unless the refusal was reasonable in the circumstances of the case) or defer an application, on the ground that the applicant intends to keep a therapeutic animal at that accommodation.5

Depending on the property title, there may be considerations other than the landlord’s discretion which dictate whether a pet can be kept at the premises. If the rental property is strata titled, animals (except for therapy or assistance animals)6 may not be kept without the strata corporation’s consent.7 For rental properties on community title, the individual by-laws of the community title corporation will state whether the consent of the corporation is required to keep an animal (noting therapy and assistance animals are excepted8 and by-laws may not unfairly discriminate against the ‘owner’ of a pet).9

Pets are generally accepted in Housing SA properties provided they are suitable for the accommodation and the tenant undertakes the animal will not: • Disturb the neighbours with excessive barking • Be a nuisance or annoyance to the neighbours • Cause danger to any other person by wandering unsupervised • Is restrained on a leash when any person authority by Housing SA is on the premises • The property and yard are kept clean, tidy and free of animal waste.10

SHARE HOUSES & ROOMING HOUSES

The obligations of a rooming house resident set out in the Residential Tenancies Act 1995 (SA) include not keeping an animal without the consent of the proprietor.11

In addition, it may be prudent (not to mention courteous) to consult the other residents in the house and obtain their consent for the pet to join the household. Introducing a pet to the household without the consent of other residents may expose the pet owner to risk. What if another resident is allergic to the pet and suffers a serious skin reaction and breathing problems? The most pressing argument in the share house may quickly pivot from whose turn it is to do the dishes or clean the bathroom to who is or is not liable for a claim from the allegedly injured resident for personal injury and resulting economic loss.

AS QUIET AS A MOUSE - KEEPING A PET IN BREACH?

Existing tenants may be served with a breach notice if a pet is discovered and the tenancy agreement specifi cally states ‘no pets’.12 A landlord could also make an application to the South Australian Civil and Administrative Tribunal seeking termination of the residential tenancy and an order for possession of the premises, alleging that the tenant has caused or permitted a nuisance or an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the premises.13

Pointon v Champion & Champion14 is a tragic example of just how badly breach situations can end. In this case, the tenant kept a pet dog on the premises in breach of the tenancy agreement. The landlords failed to give notice of intention to enter the property. When the landlord and a tradesperson entered the property, the pet dog escaped. Sadly, the dog was later struck by a vehicle and died. The Tribunal found that the landlords were not liable to pay compensation for the death of the dog and awarded compensation to the tenant in the amount of $200 in respect of the landlords’ breach of the tenancy agreement (above, and on one other occasion).

A “PET BOND”?

A landlord cannot require more than one bond for the same residential tenancy agreement.15 A landlord could however decide to charge a higher bond in anticipation of pet damage as long as the bond does not exceed the relevant limit permitted under the Residential Tenancies Act 1995 (SA).16

CONCLUSION

The special place that pets hold in people’s lives should not be underestimated, and it follows that laws regulating pets and renting with pets in particular can have signifi cant impact. For example, victims of domestic violence often delay leaving abusive circumstances due to a lack of available pet friendly accommodation and a fear the pet will be subject to violence and abuse after the victim has left.17 In this regard, one of the objectives of the ‘Safe Kennels DV Project’ of the RSPCA South Australia is to advocate for an increase in pet friendly rental accommodation.18 Each of the States and Territories have approached the challenge of striking a balance between the position of pet owners and the rights of landlords and neighbours differently.19 As recently as 14 October, 2021, Queensland passed the Housing Legislation Amendment Bill 2021, a Bill which includes reforms aimed at encouraging more pet friendly rental accommodation and providing a framework for negotiations about renting with pets. Whether legislative reform ultimately occurs in South Australia remains to be seen, but it is clear that issues concerning the resident pet are here to stay. B

Endnotes 1 https://www.lawsocietysa.asn.au/pdf/

L161120toHonMarkParnellreResidential.pdf 2 Dog and Cat Management Act 1995 (SA), s 5 3 Equal Opportunity Act 1984 (SA), s 66(e). 4 Ibid s88A. Note ‘therapeutic animal’ does not include an assistance animal, a dangerous dog within the meaning of the Dog and Cat

Management Act 1995 (SA) or a dog of a prescribed breed within the meaning of the Dog and Cat Management Act 1995 (SA). 5 Ibid s 88A. 6 Strata Titles Act 1988 (SA), s 19(4)(c), (d). 7 Strata Titles Act 1988 (SA), Schedule 3, article 4. 8 Community Title Act 1996 (SA), s 37(1)(d), (e). 9 Community Title Act 1996 (SA) s 38(1)(b) 10 https://www.sa.gov.au/topics/housing/publicand-community-housing/tenants/pets-inhousing-sa-properties 11 Section 105R(1)(b). 12 Residential Tenancies Act 1995 (SA), s 80. 13 Ibid s 90. 14 [2015] SACAT 13 (6 October 2015). 15 Residential Tenancies Act 1995 (SA), s 61(1)(a). 16 Ibid s 61(1)(b). 17 Renting with pets landlord fact sheet (www. sa.gov.au) 18 Safe Kennels DV project - RSPCA South

Australia (rspcasa.org.au) 19 The Residential Tenancies Act 1997 (ACT),

Residential Tenancies Act 1997 (Vic) and Residential

Tenancies Act 1999 (NT) provide processes which are arguably more ‘pet friendly’, where tenants give notice or seek consent of the landlord and the landlord has a period within which to make an application to refuse or object. Cf

Residential Tenancies Act 2010 (NSW), Residential

Tenancy Act 1997 (Tas), Residential Tenancies Act 1987 (WA) and Residential Tenancies Act 1995 (SA). Queensland is in the midst of legislative reform – see the Housing Legislation Amendments

Bill 2021 and the Residential Tenancies and Rooming

Accommodation Act 2008 (Qld).