The free-running dog in tenancy law
Pets in rented apartments often cause controversy. Residents are often bothered by dogs roaming freely on communal property. Not only does their "leavings" cause annoyance, but fear may also play a role. Perhaps because of a personal negative experience with dogs, or because of the need to protect children. The Federal Court of Justice has now made a landmark decision:
The facts:
Two tenants shared two dogs. They repeatedly let them run around the common areas of the rental property without leashing them. This was precisely what the house rules prohibited. The tenants had received several warnings regarding this, and after repeated violations, the landlord issued them with extraordinary and immediate termination. The tenants now sought interim relief through non-admission proceedings before the Federal Court of Justice. The Federal Court of Justice rejected this application because the appeal against non-admission had no prospect of success.
Reasons:
The Federal Court of Justice (BGH) has clarified that allowing dogs to run free in the common areas, contrary to the house rules and despite multiple warnings, constitutes a serious breach of tenancy agreements. According to the BGH, the original courts' assessment that this constitutes a breach of duty, which also justifies extraordinary and immediate termination, is legally correct.
The complaining tenants objected to the termination, arguing that termination would only be considered if other residents were genuinely disturbed by the misconduct and if concrete impairments, such as contamination, could be proven. The terminated tenants derived this from the so-called "Smoker-Excess" decision, which concerned a disturbance of the peace caused by tobacco smoke escaping from the apartment into the common areas, and which made the landlord's right to terminate the tenancy dependent on the landlord being able to prove actual impairments, including, where appropriate, that other residents actually felt disturbed. In the present case, however, the situation was different, because it was not a matter of a disturbance of the peace caused by misconduct in the apartment with external effects (although the latter, of course, always has to be proven), but rather a violation of the house rules, which was objectively present and therefore unproblematically provable. In this respect, the degree of impairment to the other residents is clearly not important, but rather an objective violation of the house rules.
The Federal Court of Justice (BGH) has not commented on whether such a leash requirement in the house rules is effective. First of all, in the case decided, it was not actually relevant whether the house rules were effectively incorporated into the specific tenancy agreement. The prohibition against letting dogs run free is, in fact, a mere regulatory provision that can be stipulated in house rules that are not part of the tenancy agreement (an expression of the landlord's right to exercise domestic authority). As such a regulatory provision, the leash requirement is permissible according to the prevailing opinion.
Practical tip:
When issuing such regulations, landlords should ensure that they are sufficiently communicated to tenants (notices, circulars, etc.).
The respective house rules should be revised and reviewed to determine whether they contain comparable regulations to protect other residents from pet nuisance. Furthermore, if such regulations exist, landlords should issue warnings in the event of violations, especially in the interest of the other residents, who could otherwise claim violations of the house rules were not remedied.
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Source: https://www.ivd-sued.net/nachrichten-details/archive/2020/april/article/pn-25-wohnraummiete-der-frei-laufende-hund-im-mietrecht.html
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