The recent Kuehn case focused on whether or not the leaseholders could keep a dog at their property. Its outcome, however, goes far beyond dogs and has ramifications for anyone who is seeking to obtain or grant consent under a lease.

Brady Solicitors consider the impact on freeholders or management companies when deciding whether or not to grant consent, and what expectations leaseholders can have about how their application for consent will be considered.

Mr and Mrs Kuehn bought a high-end flat in London. The lease required the consent of the management company before pets were permitted.

The Kuehns requested permission from the management company to bring their dog, Vinnie – a Maltese Yorkshire Terrier cross – to the property. The management company refused, pointing out their long-standing ‘no pet policy’ and saying that pets would only be allowed in special circumstances.

The Kuehns put forward ‘therapeutic reasons’ why the dog was necessary, but the management company was unmoved. Vinnie the dog moved in shortly after, despite the decision.

The management company issued proceedings against the Keuhns for breach of covenant and was successful.

Mr and Mrs Kuehn appealed. They argued:

  • There was an implied term that the management company would act in good faith.
  • The management company must follow a rational process, and must achieve a rational outcome (on appeal they narrowed this argument to only seek to rely on a rational process being followed, even though the appeal judge suggested that he believed that both rationality tests applied).
  • The blanket ban on pets indicated that the management company had already made up its mind and that their particular circumstances had not been considered.

The leaseholders’ appeal failed.

The Court found that the management company had acted rationally because the ‘no pet policy’ was subject to special circumstances.

No special circumstances had been demonstrated and so the management company was justified in refusing consent.

The Brady Solicitors view on the Kuehn case

The decision has implications not just for pet owners but for anyone who is seeking to obtain (or grant) consent under a lease.

It is not a stretch to say that the decision could apply to all matters of consent. If that is the case then regardless of the consent being considered, the key is to show that a rational process has been followed in reaching a decision.

Blanket bans that lead to consent being refused are unlikely to show a rational process.

Show a rational process when considering consent

If you are a freeholder or management company and may be asked to provide consent, consider making a ‘consent policy’ and sending it to leaseholders to outline the considerations you will take into account when deciding whether or not consent will be granted.