How to negotiate and minimise any garden issues
A clear tenancy agreement, check-in inventory report and inspections are key. Discover what else an adjudicator may look for when reviewing evidence.
The surest way to prevent any garden related issues is with a clear garden clause in your tenancy agreement, combined with a thorough check-in inventory report and regular inspections.
Garden maintenance can be contentious for both landlords and tenants because many tenancy agreements are unclear on exactly who is responsible for the various jobs required. There are very few agreements that make no reference to the garden, but the clauses are often too brief. Making it clear which areas the tenant is responsible for, and landlords understanding which areas they have responsibility for, is key, and manages everyone’s expectations right from the start and when the tenancy comes to an end.If any negotiation is unsuccessful, an adjudicator will consider the tenancy agreement, the evidence provided and a ‘reasonable’ approach when making a decision.”
Clear tenancy agreement
The tenancy agreement should define:
the expectations of the tenant in relation to the maintenance of the garden including borders, lawn and paved areas, which must be reasonable
that the garden be left, at the end of the tenancy, in the same condition as at the start, allowing for reasonable ‘seasonal growth’ (shrubs and bushes for example)
Tenants will be responsible for any excessive deterioration in the condition of the garden. When making a comparison between move in and check-out inventories, landlords should also consider the seasons and if they are different, making some allowances (winter move-in versus summer check-out)
A good example will require the tenant to: “cut the grass (if any) of the property with an appropriate garden mower as necessary from time to time to keep the grass in a neat and tidy condition, and to keep the patio areas, paths, garden areas, lawns, flower beds, shrubs or bushes and borders as tidy, weed free and in seasonal order as at the start of the tenancy.”
The tenancy agreement should also make it clear that the tenant must ask the landlord for permission to carry out any garden alterations or remove any plants without the landlord’s consent (which should be in writing).
It’s a good idea to discuss expectations at the viewing stage including what you know is your responsibility and whether you are willing to provide any tools. Once the tenant has moved in, highlight the garden clause in the tenancy agreement and maybe include some basic tips in a tenant welcome pack (see chapter five for some tips).
2. Robust inventory and check-in / check-out reports
If there are any issues relating to the garden when the tenancy ends, the adjudicator will review the check-in and check-out reports, which should be detailed, allowing for a good comparison. It’s important to carry out a thorough check-in and inventory at the start of the tenancy, which describes the condition of each area in the garden and its condition. mydeposits is partnered with inventory specialists, No Letting Go, and you can learn more about inventories in our complete guide to inventories that combines the expertise of both mydeposits and No Letting Go.
To find out more information on No Letting Go and Kaptur, visit our partner page.
If you are using an inventory company, where possible use the same one for both check-in and check-out reports. Photographs will help show the extent of any deterioration and if they are embedded in the report will be seen as taken on that date.
Photographs should be:
embedded into the check-in inventory/report and check-out report
digitally dated and in colour
referenced to the relevant area in the property
clear, precise, and of good resolution
taken from the same angle on check-out, as the ones taken on check-in
Ideally, the tenant should be given the opportunity to attend the check-in and check-out inspections and make any comments there and then. This is often not the case so make sure you send the tenant the reports within a couple of days of the starting date, giving them seven days to make any comments, and within two days of them moving out, before any necessary negotiation.
3. Regular inspections
Checking the garden should be part of regular inspections, giving you the opportunity to share gardening tips with tenants and discuss any issues you notice before they escalate. The following case study highlights the importance of documenting discussions in inspection reports, and following up visits in emails as this is all good evidence.
Resolution case study involving replacing grass under a trampoline
In this case, the tenants had lived in the property for two years, leaving everything in good condition. When they moved out and the check-out inspection was completed, the only area of concern was a circular brown patch in the grass under where a trampoline had been standing from the time they moved in. In the first of the regular inspection reports, there was a comment on the trampoline seen in the garden and where it was situated. This was provided as evidence, along with the tenancy agreement, the check-in report, the check-out report and an invoice for laying new turf on a four square metre patch of lawn, which was the approximate size of the brown patch. This was considered reasonable and the full amount of £326 was awarded to the landlord. This case highlights that a landlord can propose settlements wherever there is deterioration, which is in excess of what is reasonable and where the evidence supports it. Read the full resolution case study here for more details.
Top tip – consider carrying out a pre-check out inspection, during the tenant’s last month, so you can discuss any problems and the tenant has every opportunity to minimise any costs before moving out.
They provide clear, dated evidence of the garden’s condition
They make the report look more professional
They are required by law
Questions an adjudicator may ask when reviewing evidence
Adjudicators use the same process as you should use for negotiation. It is important to consider the tenancy agreement, check-in and check-out reports, mid-term inspection reports, estimates and invoices and any communications such as emails and letters to asking the following questions when proposing costs.
Is there a well detailed inventory, check-in and check-out report showing the exact condition of each area being considered for resolution?
Does the evidence show that the tenant has seen the reports from the start and end of the tenancy?
Are the reports independent and impartial? Are there accompanying dated photographs?
What other evidence is there to show the extent of any deterioration from the start to the end of the tenancy?
Is the opinion and proposed costs for any garden work based on all the evidence and is it reasonable, independent and impartial?
Has the tenant made some effort to attend to the problem area?
This would be evident from the comparison of the reports which both parties have seen
Has the tenant provided any evidence of costs they have incurred in attempting to remedy the issue?
Has the tenant made any admission, in writing, to causing the damage or allowing the issue to occur?
Was the tenant made aware of any potential costs ahead of time or would it have been appropriate for them to be given the opportunity to minimise any potential loss?
Tip: Remember, the landlord should not end up in a better position than at the start of the tenancy so you must consider ‘seasonal growth’ in your claim for garden maintenance and wear and tear on things such as marks left by planters on paving.
Emails and letters
Has there been written communication between the landlord/agent and tenant in relation to the issues where:
the tenant has informed the landlord/agent of the damage or excessive deterioration when it occurred such as storm damage to fences or sheds
the tenant has made an admission to causing the deterioration or offered some compensation
What, if any, are the responses?
Estimates and invoices:
Do you have receipts in relation to any of the areas in discussion?
If you do, then provide these in evidence. These may relate to the last time any work was carried out by you just before the start of the tenancy or costs you have actually incurred to put the garden back in a good condition after the tenancy has ended. This will allow an adjudicator to accurately assess the extent of deterioration the tenant is responsible for, when making an appropriate award
What is reasonable to charge the tenant?
This should be proportionate to the extent of deterioration found in the evidence and not include work carried out to the rest of the garden
Remember that both invoices and estimates are persuasive, as they should be reflective of market rates for the area. Where the tenant is proven to have caused the problem, they will be responsible for costs and if the work has not actually been done, the next check-in report should reflect this so that the landlord is unable to claim twice for the same issue
NOTE: You will not succeed in claiming for replacement costs where repair would be sufficient. For example, in the earlier case study about damage caused by a trampoline, the landlord was only looking for costs to replace the damaged area and not the whole lawn.
