Gardening can be a thorny issue when it comes to deposit disputes.

In this week’s #AskTDS, adjudicator Michael Hill answers a landlord’s query: “Can I make a deduction for my tenant changing the garden?”

With summer just around the corner, and the weather finally taking a turn for the better, people turn to the gardens to make the most of the sunshine. But be aware, gardening can be a thorny issue when it comes to deposit disputes.

In 2017, gardening was cited in over 2,000 disputes managed by TDS, that’s about 16% of all tenancy deposit deduction disputes.

Claims for gardening often cause disagreement because of the subjective nature of how a garden may look at its finest, therefore, it’s 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 misunderstandings between landlords and tenants based on what they consider to be ‘tidy’.

Ideally, tenancy agreement clauses should detail:

• Which areas of the garden the tenants are responsible for, such as; the front garden, rear garden and any side alleys;
• Which areas fall outside of the tenant’s remit, such as maintenance of large and independent trees or plants;
• What state the tenant is to return the garden in – this is most likely expected to be a well-maintained state, similar to how it was at the start of the tenancy. 
• Specifically detail whether tenants must take responsibility for cutting the grass, tidying flowerbeds, and sweeping up leaves.

In one recent case, a tenant installed a pergola in the rear garden mid-tenancy. It sat on top of the decking for people to walk through as they left the rear patio doors. At the end of the tenancy, the landlord claimed £950 to remove it as he claimed it was blocking natural light to the conservatory, but the tenant argued that it added character.

In this instance, while some would agree with the tenant stylistically, the adjudicator made an award for the cost of the pergola’s removal.

There was no evidence that the tenant had asked permission to make alterations to the garden and luckily for the landlord, the tenancy agreement stated the garden was to be returned in the same state as at the start of the tenancy, with no alterations made.

It pays to ask permission.

To avoid gardening disputes, TDS recommends: 
• Ensuring your tenancy agreements contain a detailed and specific clause relating to the maintenance of the garden and outside areas.
• Taking into account the season which the tenant moves in and out of the property and how you would expect the garden to have been returned in these circumstances.
• Ensuring any claim proposed against the tenant’s deposit is fair and reasonable.

About the author:

After studying law at university, Michael Hill joined TDS in early 2015. Having started as a caseworker, Michael began working as a full-time adjudicator in September 2015. He currently works part-time as an adjudicator and part-time as an executive assistant to the CEO, Steve Harriott. Michael has been responsible for adjudicating in over 2,000 disputes.

About TDS:

Tenancy Deposit Scheme (TDS) is a government-approved scheme for the protection of tenancy deposits; TDS offers both Insured and Custodial protection and also provides fair adjudication for disputes that arise over the tenancy deposits that we protect.

We provide invaluable training in tenancy deposit protection and disputes for agents and landlords through the TDS Academy as well as joining with MOL to provide the Technical Award in Residential Tenancy Deposits.

TDS Insured Scheme: where a TDS member can hold the tenancy deposits as stakeholder during the term of the tenancy.

TDS Custodial Scheme: where TDS hold the deposit for the duration of the tenancy.

TDS Academy: TDS provides property professionals with invaluable training in tenancy deposit protection and tenancy deposit disputes.

TDS can only comment on the process for our scheme, other deposit protection schemes may have a different process/require different steps. Content is correct at the time of writing.

These views are those of the author alone and do not necessarily reflect the view of TDS, its officers and employees.

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