Is there any guidance or case law relate to the scope of responsibility of garden maintenance that falls under the tenants obligation? General maintenance such as grass cutting, pruning and weeding would normally be expected from the tenant but when the need for branch lopping on trees or maintaining high hedges which can be a one off job needed years after moving in, can that be the responsibility of the tenant? I would think not but some landlords expect it. Is there a legal or acceptance stance on it?
Question
Tenant Obligations (England)
Garden Maintenance
Answer
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2 Comments
Gardening, including lopping of trees would not be governed by the repairing obligations of Landlord and Tenant Act 1985 and so in theory can be contracted into the tenancy.
However, I think the examples you give would likely be regarded as an unfair term under the Consumer Rights Act 2015. A term can be unfair if it imposes an unfair restriction or requirement on a tenant which this may fall under.
I’ve had a quick look through the unfair terms guidance for tenancy agreements produced by the OFT and there are no examples of what a fair gardening term is (nor what an unfair one is). I’m also not aware of any decision on the point.
As things are therefore, landlords probably can ask for these things to be done but it maybe that a tenant would be successful in showing such a term as unfair and therefore unenforceable.
It should be noted that the tenancy would have to specifically contain such a term for the tenant to be required. If the term just says mowing and weeding for example then that’s where the duty ends. I doubt our clause would require the tenant to lop trees and such (but equally there would be no requirement on the landlord to do this either).
Short answer is yes – even seemingly ‘unfair’ terms are legally binding and enforceable until a Court holds otherwise! Trees differ from shrubs in that they are more likely to require specialist access (e.g. platforms/ladders) and the pruning/lopping of branches requires specialist knowledge if the tree is to be preserved and falling branches introduce safety issues. A caring landlord would probably offer the services of an aboriculturist to take care of the trees though not obliged to. What would happen if a landlord was to insist the tenant ‘lops the offending branch off the tree’ himself and the tenant gets injured?