What are your rights if your tenant lets your garden go to seed? TDS adjudicator, Michael Hill, delves into the world of garden-related disputes – outlining where responsibilities lie and how to protect yourself.
With summer just around the corner, and the weather finally taking a turn for the better, thoughts turn to the garden. Issues around gardening were cited in over 2,000 disputes managed by Tenancy Deposit Scheme last year, equating to about 16% of tenancy deposit deduction disputes – a significant figure. Dig in to these stats – if you’ll pardon the pun – and you find cases that range from cutting back weeds on the front pathway to removing a pergola installed by tenants. Claims for gardening often cause disagreement because of the subjective nature of how a garden may look at its finest. It is therefore essential that the obligation placed upon the tenants in the tenancy agreement is detailed and specific. A clause for the tenant to return the garden in a tidy state may cause disagreement between landlords and tenants based on what they consider to be ‘tidy’. Clauses While many clauses place specific obligations on tenants to return the garden to its pre-tenancy state, this is not always possible.
If Mr Smith moves into the property on 20 July when the lawn is freshly cut and the flowers and plants are blossoming, it is unlikely Mr Smith can return the garden in this exact state when he leaves on 14 December. Other factors will come into play, such as the ground freezing over or heavy rain in the week before the end of the tenancy. An adjudicator will always have to take into account seasonal variations and environmental factors when deciding if a deduction from the deposit is justified. TDS is often asked to resolve claims relating to installations made over the course of the tenancy. Often a tenant may make what they consider to be an improvement to the garden during their occupancy. However they may fail to ask the permission of the landlord, causing disagreement at the end of the tenancy period about whether the installation has enhanced or damaged the garden. It is important to keep clear, written records of agreements made with tenants regarding alterations to the garden during the tenancy. These are vital evidence in case of a dispute arising. In one case dealt with by TDS, a decision was made based on a specific clause on where gardening responsibility fell.
The landlord claimed £100 for a replacement pane of glass to the greenhouse which was situated at the end of the garden. The tenant, Miss Brown, argued that she had told the landlord she would only maintain the garden up to the small wall halfway down the garden – and anything beyond that point was his responsibility. The tenancy agreement contained an individually negotiated clause which specifically stated the tenant was only responsible for maintenance of the immediate rear garden as far as the wall and anything beyond that point remained the responsibility of the landlord and his gardener.
The adjudicator was not persuaded any award to the landlord was justified in this case. While the rear part of the garden formed part of the tenancy and the tenancy agreement gave permission to the tenant to use the garden, the clause was specific to state the landlord was responsible for its maintenance. It was therefore not possible to conclude the tenant should be responsible for the cost of repairing broken glass in the greenhouse. Another consideration landlords should take into account is how realistic and fair the claim they are making against the tenant’s deposit is. TDS was presented with a case some time ago where the landlord wished to claim a small sum towards replacement fish for his pond. The tenant, Mr Green, had been in occupation for a number of years and the tenancy agreement set out that the tenants were to make every effort to maintain the pond in the rear garden and feed the fish regularly. The tenant argued in his response that he had fed the fish frequently and maintained the pond to the best of his abilities, however sometimes fish die, and this is not something he could or should be held responsible for. The adjudicator in this case made no award to the landlord.
While the tenancy agreement obliged the tenant to return the garden and its contents in the same condition it was let out in, it was unreasonable for the tenant to be held responsible for fish dying in the pond. This case was perhaps extreme, but the same issues arise frequently in cases relating to claims for the replacement of dead plants or flowers. Landlords should ensure tenancy agreements contain a sufficient obligation on the tenant to maintain and look after the plants and flowers, however landlords must also be reasonable when making a claim against the deposit. Landlords can find out more about TDS’ dispute resolution service here.
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