WIREDGOV

In the summer months, some tenants will be planning on spending time outdoors in the garden if the weather is good.

In this article first published in our Residential Property Investor magazine, we take a closer look at the issue of gardening related disputes. Sandy Bastin, Head of TDS Adjudication Services at Tenancy Deposit Scheme (TDS), explains how to avoid being led down the garden path and come out of a gardening-related dispute smelling like roses.

Disputes over tenancy deposits can be a thorny issue at times, especially when it comes to preserving a green-fingered landlord’s pride and joy. From April 1, 2018 to March 31, 2019, gardening accounted for 2,561 disputes that TDS handled.

These ranged from minor disagreements over plants totalling £3.12, to a major outdoors redevelopment claim for £5,040. In total, these claims added up to £602,248.25. That’s a lot of primroses. Perennial problem Of course, not all of these claims were upheld when they reached the early intervention or adjudication phases of disputes, but they do demonstrate that confusion over gardening responsibility is a perennial problem in the private rented sector.

We find that gardening disputes are often very similar to cleaning related disputes. The subjective nature of what a landlord may consider a well-kept garden may be very different to their tenant’s definition of the same thing. In many cases, the ambiguity can be removed before the outset of the tenancy by accurately documenting the state of the garden in inventory/check-in reports supported by dated photographs. Specific garden-related clauses should also be included in the tenancy agreement detailing the division of responsibility for outdoor areas and the standards expected for upkeep. Claims In one recent example, a landlord made a claim of £500 from his tenant’s deposit to re-turf the property’s garden, but ambiguity in the tenancy agreement meant it wasn’t a cut and dry case.

During the tenancy the tenant reported (to the agents) there was an on-going issue with the rear lawn which the tenant eventually addressed by arranging for a leather jacket infestation to be treated and the lawn reseeded. The seed, however, failed to germinate and at the end of the tenancy the landlord claimed to have the lawn re-turfed. The landlord looked to rely upon the tenancy agreement which in addition to obligations requiring the tenant to keep the garden in good condition also placed a responsibility on the tenant to take all reasonable precautions to prevent infestations on the property and to pay to eradicate any infestation caused by ‘negligence’.

A report from a lawn expert advised that the seed was failing to germinate due to a lack of sunlight (the garden was heavily shaded) but confirmed there was no presence of the larvae infestation to be found. The checkout comments did not identify any issue with the lawn, reporting only that it had been seeded. When it came to adjudication, TDS’ adjudicator noted that the tenant took ‘reasonable precautions’ to wipe out the infestation, but that the lawn was left bare as the grass seed did not respond due to a lack of light.

No evidence

Understandably, the adjudicator appreciated the lack of sunlight and aspect of the garden and that there was no evidence to show that the infestation which ultimately led to a problem with the lawn had been caused by the tenant’s ‘negligence’. As the deposit serves to compensate the landlord for breaches of the tenancy agreement by the tenant, the adjudicator made no award to the landlord for returfing the lawn.

Despite the tenant’s best efforts to kill off the leatherjackets and re-seed of the lawn failing, the adjudicator considered the tenant’s actions were reasonable and ‘tenant like’. In this instance, the tenant’s action to manage the issue and mitigate his landlord’s loss ensured the return of his deposit because of the wording of the tenancy agreement. In another case of documentation and evidence adversely affecting a dispute, another landlord received £607.50 of a £2,400 claim. The landlord stated that the tenants were given a rent reduction of £200 per month on the basis that they would be responsible for the gardens and gardening works. She also said that the gardens deteriorated over the last 18 months of the tenancy and was claiming the last 12 months of the rent reduction of £200 per month which totalled £2,400.00.

Significant obligations Her tenancy agreement detailed the tenants’ significant gardening obligations as: l Reinstatement of various steps leading to the mill pond; l Reinstatement of various garden paths; l Reinstatement of beech hedge on boundary; l Restorative gardening, including reinstatement of flower borders in mill pond and other areas subject to discussion with landlord; l Cleaning and staining of footbridge, decking in mill pond and decking area next to the house.
During the dispute, the tenants acknowledged the reduced rental arrangement based on the special conditions in the tenancy agreement. The tenants had undertaken a number of the jobs, but the landlord had found issue with their execution. The tenant installed steps, however at the end of the tenancy the landlord said that they were unsafe and so the tenants removed them. Both parties disagreed on the safety issue. Hornbeams planted by the tenants around the garden boundary died.

The landlord attempted to replicate the ill-fated plants but achieved the same outcome. Again, disagreement broke out with the landlord pointing the finger at the tenants for not watering and the tenants blamed the weed killer from the adjacent farm.

The tenants stated that they worked really hard at restoring the gardens which were all overgrown at the start of the tenancy and pointed out that the agent’s inspection reports that documented the gardens to be neat. They also pointed out that when they vacated no remedial works were required to the grounds at all.

It seems to me that this was a very ambitious project for the tenants to take on and the loose terms of the tenancy provisions did not clarify the extent of the work they were required to undertake or for any prior approval or mechanism for a satisfactory standard.

Failure

That said, they did fail to comply with their obligations in certain areas including the footbridge, woodwork and some untidy areas of the garden. The landlord believed that around 156 hours of work were required, however our adjudicators did not consider the photographs to reflect this extent of work.

The case may appear extreme, but it makes the point that outdoor areas are equally as important as indoor areas when it comes to tenancy agreements and inventory reports. Without key pieces of evidence being properly prepared, or sufficiently thought out tenancy obligations, any dispute is likely to wither. 

Landlords can find out more about TDS’ dispute resolution service here.