Who is responsible for garden care?

When it comes to the lawns and gardens, there are few specifics written in a lease and the Act about who must do what. Over time, the tribunal has created a series of standards for what they see as the tenants’ responsibility and what they consider the owner’s responsibility. These have worked reasonably well and produced outcomes that match most people’s expectations.

If you are a tenant, you are expected to ‘maintain’ the landscape and are responsible for regular and routine maintenance keeping the yards and gardens healthy and presentable.

And as a landlord you are expected to ‘repair’ the landscape doing the larger work that happens less frequently.

To help clarify the details, here is a list of common gardening tasks, what is expected and who is responsible.

Lawns
• Mowing regularly
Regularly cutting grass is a tenant’s responsibility. Grass needs regular cutting to ensure good root growth and ground coverage. It also stops it from growing tall and going to seed. If the grass cover is thick, it helps reduce weeds and stops the soil from drying out. Don’t let the grass grow more than 7-8 centimetres high as measured from the top of the soil. And when cutting the grass, aim to remove no more than about a third of the height. Any more than that, and you’ll stress the grass, and it will likely die back.

• Grass Edges
Tenants also need to trim lawn edges so grass doesn’t grow into gardens or across paths. Similarly, grass growing up against walls needs to be trimmed, so it is tidy and has good root growth.

• Remove clippings
Leaving grass clips on the lawn can kill grass if they clump together. It is expected that a tenant will dispose of the grass clippings by placing them into a green bin for removal by the council. Creating a compost heap when there wasn’t one at the commencement of tenancy is not allowed.

• Water as needed
Lawns need watering regularly depending on the weather, which may mean occasional hand watering. A drought and rules on water usage doesn’t release a tenant from the responsibility to maintain the grass. They are expected to water when they can and how they can. Cutting grass to the correct height helps reduce the ground’s water loss, but when we have dry periods, you will need to regularly water, so the grass doesn’t die back.

• Weeding as needed
A tenant must look after the grass, so it grows healthy and looks good. Get advice from garden stores on the best treatments for the weeds you have in the lawn. The fewer weeds you have in the lawn, the fewer weeds can seed and multiply.

• No parking
Grass dies if the ground is compacted. Tenants are responsible for any damage if it happens. Driving a car onto the lawn rather than sticking to the driveway may be more convenient, but it will quickly kill the grass and creates ruts.

Gardens
• Water regularly
Watering gardens is a tenant’s responsibility. Garden beds have far more soil exposed to the air than a lawn and dry out much faster. The garden needs to be watered regularly to replace water loss. If you don’t provide water, all but the hardiest of plants will die.

• Weed regularly
Weeding is a tenant’s responsibility. Gardens are good at growing things, and the tenant must remove the weeds and grass in garden beds before they choke plants. Digging them back into the soil might seem ecologically sound, but it only results in more weed growth and more work to fix the problem.

• Trimming shrubs and plants
Shrubs and plants are defined as less than 2 metres high and are tenants’ responsibility to maintain. Most shrubs and plants, if left to grow unchecked, will lose shape and become overgrown. When that happens, it is hard, if not impossible, to cut them back to their original size without killing them. Hedges need to be maintained with frequent and regular trimming.

• Replacing plants and planting new plants
Plant life cycles are part of gardening; their replacement is usually considered an owner’s responsibility. If plants die due to lack of care, a tenant will be expected to replace them. Planting new plants that will grow to become trees is not allowed unless the owner agrees. An owner can require the garden to be returned to its original condition and the new trees removed.

• Trimming trees
Trees are defined as plants over 2 metres in height and can include hedges and plants often classed as shrubs. It’s all about the height; once it is over 2 metres, the tribunal says it is the owner’s responsibility.
Some plants are less than 2 metres high at the start of the lease, but with the absence of trimming, they can grow over that height. Hedges often fit these circumstances, and expectations need to be clear at the outset. The best practice is to include a clause in the lease as to what is expected and have it listed in the commencement inspection report, so it is enforceable.

Pools
• Cleaning
A tenant is responsible for cleaning the pool, keeping the pool chemicals balanced, and topping up the water level as needed. The pool filter needs to be run regularly, and the pool chemicals and power costs are at the tenant’s cost. Some owners include pool maintenance as part of the lease, which becomes an owner’s responsibility.

• Paths and driveways
If these need repair, it is the owner’s responsibility to fix them. On the other hand, the growth of mould and algae on paths or driveways would be considered routine cleaning and the tenant.

• Watering systems
Repairing and maintaining tap washers, and if you were supplied hoses to the property, maintaining those. The payment of water is the tenant’s responsibility under the lease.

• Drainage systems
A tenant would be responsible for clearing leaves and dirt from drains, but if a drain collapsed or became blocked, that would be the owner.

Exterior of property
• Gutter cleaning
Owners are responsible for gutter cleaning. In the old days, tenants were held responsible, but now the current Act and practice have passed it back to owners.

• Fences and gates
If a tenant has erected the gate or fence in the first place, then maintenance is the tenant’s responsibility. Otherwise, maintaining these is the owner’s responsibility unless the tenant has caused the need for the repair, e.g. in the case of a dog that has pushed out palings.

Passing on the cost to the tenant
The Residential Tenancies Act allows a tenant to only be charged rent, a bond, and utilities. It is illegal to charge tenants for garden or pool care. Instead, the owner must pay the costs of the work. The ‘value of work’ can be recognised as part of the value of renting the property and in turn be reflected in the rent charged.

There are some things to remember with this arrangement:
The rent a tenant might pay for not having to worry about gardening may not equal the cost of providing it. If you have a considerable sized yard, providing lawnmowing as part of the lease will help find a tenant but may not add substantially to the income. Similarly, having hedges maintained may keep them looking good but again they probably won’t add that much to the rent, if at all. The decider is what would an alternate property realistically cost a tenant?

If the service is removed, the tenant can have the rent reduced by the value of that service. It doesn’t mean arrangements can’t change but it does mean they must be negotiated and documented carefully. We have seen cases in the tribunal of owners removing a service without tenant consultation or agreement and the tribunal has awarded far more financial compensation than would have been the case if properly handled.

Owners doing work is generally seen by the tribunal as a ‘labour of love’. The referees see the work done as costing only the cost of materials. Additionally, the referees might look at an owner cutting the grass at the property each fortnight as a reduction in the tenant’s privacy. We know of cases where they have reduced the rent to compensate. If you are going to have work done, have it done by professionals who are at arm’s length from you. Its just a whole lot safer.

Making garden maintenance clear
Ingoing inspection reports and specific lease terms are the right way to clarify what needs to be maintained by a tenant. It’s not just about photos but having the individual items listed on the inspection report and a written description. Photos, while compelling, aren’t recognised in the Act and Regulations as part of the commencement inspection record; the wording is. Photos can shed light on how something was at the time, but if it is not written in the ingoing or outgoing, it doesn’t count.

Having clear clauses in the lease is the way to make expectations understood by both parties. The Act allows special conditions to be written into an agreement providing they do not go against the statute or the regulations and are understood by both parties before entering the agreement.
So, you can have a special condition that says the tenant will cut the grass each fortnight, and that is enforceable. A clause that says the tenant must pay for pool cleaning is not legal as it requires a tenant to pay money in addition to rent, utilities, and bond.

The final thing that makes garden maintenance agreements work is intention. Maintaining yards takes time and effort, and if a tenant doesn’t want to do the work, no explanation or documentation will make them do it well. If you think that might be the case and still want the tenant, then have the property professionally maintained and reflect the value in the agreed rent.

As with all property management strategies, you can only choose from your real alternatives, not the ones that should happen but won’t.