HELP! Landlord wants me to pay for the garden

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  [Deactivated] on 27/03/2014 - 15:20

  Check your rental agreement. Does it in anyway mention the garden? Or did your landlord mention about watering the plants?

  Technically, it is the owner's responsibility to organise the garden to be cleaned (that was what happened in my past rented properties).

  If in doubt, raise the issue with the Vic rental authorities.

  • 

    the.piemaker on 27/03/2014 - 15:47

    I'm at work now but I'll check when I get home. Just got the email from the agent and I can't do anything about it at the moment and want to know what options I have going forward.

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  GiggidyGoo on 27/03/2014 - 15:24

  In your four years you were there, did they ever say anything in the inspections? Did you ever tell them about the garden upkeep issues you had? Generally, gardens are part of the house and are the responsibility of the tennant to keep tidy/alive unless agreed otherwise.

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    the.piemaker on 27/03/2014 - 15:46

    No, the agent that inspected never said anything at the inspections. Just to cut the grass and maintain the weeds (which we did).

    When I spoke to the agent yesterday during the final inspection, she said everything looked okay and she also said that there wasn't anything else I could do about the garden as there was no outdoor tap available and that I should get my bond back. Today, she's emailing me saying that the landlord wants me to pay to get it fixed. Very frustrating.

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  pax on 27/03/2014 - 15:25

  Did you make a record of requesting the landlord make outdoor taps available, or record with them, or the managing agent that you have no way to water garden as no outside water sources, before the plants/grass died??

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    the.piemaker on 27/03/2014 - 15:51

    There are sprinklers outside but they don't work and we have no access to it as it is a unit and probably controlled by the Body Corporate.

    I've lived there for 4 years so I know that during Summer the grass does die as it's so hot but over autumn/winter/spring, it tends to grow back and it's a cycle. But we're moving out right at the end of the Summer cycle and there's nothing there but I know it'll grow back though obviously no one's going to believe that.

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  mini2 on 27/03/2014 - 15:49

  +1

  Talk to those tenancy advocates for help.

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  the.piemaker on 28/03/2014 - 22:20

  So the landlord is saying that if I don't agree to get it fixed, they will bring this to VCAT. I have a few issues:

  1) This was not mentioned to me in the first final inspection and I was only made aware of it a day before the new tenants are moving in - could this be proof that the owner was not mitigating their loss?

  2) During regular inspections by the REA, they never mentioned concerns about the garden but has only now, after my final inspection, become an issue.

  3) As there is no water supply, it's doubtful that new turf or seeds will grow since they need constant watering after they have been planted. Because of this, will I be still be liable seeing as it was not properly "fixed"?

  I just want to know if I have a strong enough case to bring forward. Any help would be appreciated, thanks!

  • 

    mini2 on 30/03/2014 - 12:05

    Try spin this to become the property manager's fault - they should've picked it up on inspection. I've ditched PM's in the past because they aren't looking at things such as weed.

    In fact, check your lease/rental agreement and see if there's anything related to weed. If not, try wiggle your way out of there. Learned my lesson yonks ago to have the weed terms in the agreement as I've got burnt in the past. It wasn't costly to fix, it's just annoying as you've found out.

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  Geewhizz on 29/03/2014 - 07:14

  Why not give VCAT or whomever the appropriate tennants' advocate is in your state and ask them wehre you stand? Does your lease mention maintaining gardens? If not he doesn't have a leg to stand on. Make it clear that there is no water available for the garden, and he still won't really have a leg to stand on.

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    the.piemaker on 29/03/2014 - 09:04

    I've called the Tenant's Union and they say I have a few valid points to bring up, namely there's no outdoor tap, sprinklers controlled by BC, we've been in a drought with water restrictions and that we were never told this was a problem during routine inspections until now.

    However, the REA and LL keep harping back to the contract and condition report which has me a bit worried that I may not have a good case. My agreement says that I have to maintain the garden including lawn, trees, shrubs, plants and garden beds in a neat and tidy condition, free of weeds and so far as reasonably possible free of garden pests and properly watered (water restrictions if any permitting). If the garden is watered by a watering system and/or via tank water, the tenant will maintain the system and/or tanks in the state or repair and condition it or they were in at the start of the tenancy. (I don't control the sprinklers, this is the BC and I have that in writing that they do).

    I feel that the clause stating "so far as reasonably possible… properly watered" could help my case in that it wasn't reasonable for me to water a 40sqm garden without an outdoor tap.

    Thoughts?

    • 

      Geewhizz on 30/03/2014 - 07:44

      What sort of money is involved? If not a huge sum it might be easier to just let him have it to make the headache go away.

      Just out of interest, have you at any stage raised the issue of the watering system with the real estate agent?

      • 

        the.piemaker on 30/03/2014 - 10:41

        He's withholding my bond, so I'm assuming he wants all of it, which is around $1,500.

        No, did not raise the watering system (which is my bad). However, when REA came for routine inspections, they never raised garden issues either.

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  emiko on 29/03/2014 - 13:49

  I do think you need to pay the garden back.
  IF you can't maintain garden without water system. you could have mentioned it before all the garden die or gone. I am sure the owner would do something before all the garden gone.
  I have unit renting out at moment, we spent hundreds to grow the fresh lawn and tidy everything before we rented it out.
  Its not fair if I got it back with empty garden…

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  modsec802 on 29/03/2014 - 22:37

  Can you come to some agreement with the landlord - find out how much it will cost to get it back to basic standard (considering it will probably die again) and then offer to split the cost 50:50 with the landlord.
  Often they'll see this as reasonable as they want it done and will avoid them the hassle and cost of going to a tribunal.

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  the.piemaker on 30/03/2014 - 10:18

  They're withholding my bond which is around $1,500.

  I've consulted with a few gardeners/landscapers and they say that even if they did install new turf, it will die as it needs to be watered constantly for 2-4 weeks.

  • 

    King Steuart on 02/04/2014 - 02:49

    I would go to VCAT. What a stupid landlord. They would never rule against a tenant in this scenario.

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  the.piemaker on 02/04/2014 - 08:17

  We're meeting the REA on Friday to see if we can come to some kind of middle ground. I'm not opposed to going to VCAT if we can't come to an agreement but I'm just worried that this might impact my future rental applications? Does anyone know if going to VCAT will leave a mark on my record?

  • 

    mini2 on 02/04/2014 - 09:10

    There's something called TICA (think of it as a rental type kind of Veda or D&B) and speak to the tenancy advocacy people again…

    You can be added but also dispute and force the removal of such records as well. VCAT have the authority if they have found the record incorrect/malice/whatever. Then again with Melbourne vacancy rate being kinda high, who cares it's a renters' market.

    • 

      King Steuart on 02/04/2014 - 10:16

      What's your source on it being a renters market in Melbourne? Do you mean the cbd? I'm in the eastern suburbs and gave 2 months notice of my break of lease for 30 April, we had just one OFI in early March and they had several applications. New tenants are moving in 5 days after we move out.

      Our REA said properties are high in demand and backed it up with those facts. Must depend on which part of Melbourne.

      • 

        mini2 on 02/04/2014 - 13:42

        +1

        Yeah Melbourne CBD. Do I really care whether or not I have sources to back this up? Not really.

        I'm not writing an essay which require references to be cited, this is OzB.

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  QW3RTY on 07/04/2014 - 13:12

  Judging by the section on tenants maintaining the gardens, it's absolutely your responsibility.

  If the tap forms a part of your Premises (check the definition of Premises under the Lease)

  However, I bet my bottom dollar than in your Lease, there's also a section that concerns the maintenance and repair of the premises. The financial reponsibility of maintaining a tap may be for the Lessor's account, but it may require the Lessee to inform the Lessor of any damage/repair required to the Premises.

  If you have noted there's a non-functioning tap, and you're required under the Lease to report such required maintenance (and you haven't), then you're not fulfiling your responsibilities under the Agreement.

  If the tap does not form part of your Premises (controlled by Body Corporate)

  Under the management agreement of the Body Corporate to the owners committee, the Body Corporate has a responsibility to repair and maintain common services. If they have not fulfiled this obligation, then they are in breach of their Agreement, and can be determined as responsible for remediation.

  Too Long Didn't Read

  Read your Lease.
  If you can, obtain a copy of the Body Corporate Management Agreement. (Go direct to the STRATA if your Lessor is being a pain)
  Stay in school.
  Don't use drugs.

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  nuno on 07/04/2014 - 13:30

  -1

  If you performed regular maintenance then I cant see that you can held liable. Were you given strict instructions on how to maintain the garden? Feeding, watering schedules etc ??

  If not and you can prove that you kept the house in a reasonable state, tell them to fob off. Fight it.

  Landlord shouldn't plant high maintenance plants knowing that over-care or under-care will potentially kill them.

  • 

    QW3RTY on 07/04/2014 - 15:15

    If you performed regular maintenance then I cant see that you can held liable. Were you given strict instructions on how to maintain the garden? Feeding, watering schedules etc ??
    Landlord shouldn't plant high maintenance plants knowing that over-care or under-care will potentially kill them.

    I hope you're not serious. Probably the most laughable reasoning out there. Are you telling me there should be controls and restrictions on decorations, gardens and structural aspects of a property to ensure that a Lessee would have to do the minimum required work? You seem to be forgetting that the Lessor is the owner of the property, and (whilst maintaining compliance with a DCP, LEP and common sense) can do whatever they wish to their property, pending DA consent. Your job, as a Lessee under a Lease, is to keep the premises in a clean and maintained condition. Standard clause. Under your logic and reasoning, a landlord:
    - Shouldn't install a nice stove cooktop, in case the tenant forgets to clean it;
    - Shouldn't install a laminate benchtop, in case the tenant neglects a spill and it stains;
    - Shouldn't install a hardwood floor, if the garden path is gravelled, in case the tenant doesn't wipe their shoes
    - Shouldn't install a pool if the tenant isn't willing to clean it

    If not and you can prove that you kept the house in a reasonable state, tell them to fob off. Fight it.

    The garden is dead. The tap was either out of access of the tenant, or was not functioning. Either situation presents two very different approaches the Lessee could take.

    Your reasoning, unfortunately, does not fall in to either of these approaches. Your reasoning falls outside of commercial reasoning.

    ---

    TLDR; lol

    • 

      nuno on 07/04/2014 - 16:04

      I think you're overstretching reason and logic here. You fail to understand that while it may be the onus of the lessee to maintain the premises to a reasonable standard, there are simply too many factors that have to be considered. One of which could be normal wear and tear, unnatural weather occurrences, extrinsic vandalism and other circumstances beyond ones forseeable control. Holding a tenant responsible with so many of these factors and not being able to prove negligence is a long bow to draw. I know from experience. I own three rental properties.

      • 

        QW3RTY on 07/04/2014 - 16:26

        You, sir, are one-hundred percent correct!

        Which is why all standard Lease agreements contain clauses that say:

        During the Term, the tenant must keep the Premises and the Tenant's Fittings in good repair and condition having regard to their state of repair and condition at the commencement of this Lease. That obligation excludes: (i) fair wear and tear; and, (ii) damage to the Premises caused by fire, storm, tempest or any other risk covered by any insurance taken out by the Landlord in respect of the Premises (other than where any insurance money is irrecoverable through the act, ommission, neglect, default or misconduct of the Tenant or the Tenant's representatives).

        As you rightly say, this is so that the Lessor may not claim for faded carpets, burned down apartment blocks or a car going through your lounge room(unless the tenant is the one driving said vehicle — then I'm sure the remedies under the Lease cease, and the Crimes Act 1990 takes over.)

        As I've said previously, now it falls to the Lessee and the Lessor to see why the lawn wasn't watered. Was the Lessee unable to? Why? If the tap was accessible and broken, then there's an avenue for that. If the tap was not accessible, then there's another avenue for that.

        I too know from experience, I represent the interests of Landlords.

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  nuno on 07/04/2014 - 18:12

  To expand on my previous comment, if you've been in the landlord business long enough you would know to lessen the monetary expense on such items as these when they do become unserviceable and damaged you would take pre-emptive measures. For example plant hardy plants, sow hardy lawn, fit out the house with durable - high wearing fittings and fixtures. I've been doing this for years after learning the expensive way - and now I can simply charge my tenants a justifiable "cleaning and restoration" fee - when they vacate the premises. Everyone is happy. HTH

  • 

    Geewhizz on 08/04/2014 - 06:17

    But if trees, lawns etc already existed when he bought / leased out the place, why would he rip them out just to plant something that may be seen as hardier? ANY plants are going to struggle when there is absolutely NO water whatsoever.

    • 

      QW3RTY on 08/04/2014 - 08:51

      If a tenant doesn't want to take the premises "as is", then why on earth would they lease it?
      Why on earth would a landlord want to rip up their garden and replace it, at their own cost, to help save a tenant (who doesn't maintain their property) money?
      I honestly can't even understand the logic.

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  the.piemaker on 07/04/2014 - 22:26

  When I moved in, the sprinkler was not in the condition report. In fact, I didn't even know there was a sprinkler system until months into the tenancy. I emailed the REA at that stage and she told me that the BC controls it. In this case, I can't be held liable for its maintenance, can I?

  • 

    Geewhizz on 08/04/2014 - 06:24

    I didn't even know there was a sprinkler system until months into the tenancy. I emailed the REA at that stage and she told me that the BC controls it.

    Did you by any chance mention that it wasn't working? If so I reckon you should have a fairly strong case.

    BUT prior to discovering that there was a sprinkler system, what were you doing to water the garden, given that maintaining it IS in your lease?

    • 

      the.piemaker on 08/04/2014 - 08:32

      I was watering with a can but it was really, really hard.

    • 

      QW3RTY on 08/04/2014 - 08:56

      As Geewhizz says, as long as you liased with either the REA or BC regarding your non functional sprinkler system, you have a foothold. If the REA did not action this repair, or did not inform the Lessor, then a percentage of responsibility falls back on them.

      However, the Lessor or REA may come back at you under a different clause of your Lease, if you failed to inform the relevant parties.

      Make sure you see quotes for the required garden works to return the premises to the state is was at handover.

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  juventino on 08/04/2014 - 02:07

  +1

  argue with them that the owner should have provided you with whatever is necessary to maintain the garden in the first place. The landlord will have got the first hand knowledge of these sprinkler system and outdoor tap, yet he/she doesnt do anything about it. Very low level of duty of care . But you're also a little bit in the wrong as you knew the sprinkle didnt; work yet you didnt inform them

  Of course they are going to threaten you, they are hoping that you will back off and give them the money. Most real estate agents are scumbag like that :) Settle it through Vcat. Let them waste their time by attending the hearing. Get those comments by landscapers in writing, might work in your favour.

  After 2 years of lease, I was informed by the agent that they will withhold $1700 for general cleaning,replacing broken tiles and pots in the balcony which was already there before I came in and water leakage on the ceilings.

  I wrote them a nice short email telling them where to stick it. I ended up paying them $250 for a cleaning session

  • 

    the.piemaker on 08/04/2014 - 08:33

    Yup, I think VCAT looks like the way to go. We've offered the LL a fraction of what he was asking and waiting to hear back. If he's not keen, VCAT it is!

  • 

    QW3RTY on 08/04/2014 - 09:02

    OP;

    Do you still have a copy of the Handover Inspection Report issued by the Real Estate Agent or Managing Agent? Your success can hinge on this.

    As Juventino says; if you can prove that this system was not functional, you may have some credit to you.

    Where your case differentiates to Juventino's, the garden was alive when you rented, and now it's dead. They're going to exploit the angle that this is not maintaining the Premises. Check your Lease to find out who is required to maintain essential Services (Probably section 1: definitions, and then 'Services'). I'd imagine if the sprinkler system is managed by the Strata, this will be their responsibility.

    • 

      the.piemaker on 08/04/2014 - 09:59

      The thing is, part of the garden is still alive and thriving. We have pictures that show that one area has grown significantly while the other hasn't (and this is without proper watering facilities). I mean, logic would have it that we'd take care (or neglect) the whole garden and not just a section of the garden. Hopefully all this works in our favour.

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  juventino on 08/04/2014 - 08:43

  and also, keep every conversation with them in writing otherwise you will have no proof. Once gone through Vcat, some LL and REA will claim ridiculous amount of bond, higher than previously agreed, to cover their bases.

  • 

    the.piemaker on 08/04/2014 - 10:00

    They've already lodged the VCAT application for a certain amount. Are they able to claim higher than that at VCAT?

    • 

      juventino on 08/04/2014 - 19:12

      in that case no. In my case they asked me for a certain amount and changed to a higher amount at VCAT

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  MementoMori on 14/04/2014 - 16:00

  The garden is your responsiblity and it's dead.

  It's also your responsiblity to notify the PM of any required repairs and maintenence and it's the responsiblity of the PM / Owner to keep the property in good working order.

  If you were unable to water the garden because a part of the property was not in good working order, and you did not notify the Agent (who would have notified the Body Corps Agent), then it's your fault in my opinion.

  I think it's irrelevant if it's the Body Corporates taps or the individual owners. I think you're just looking for excuses here. The owner owns a portion of the common property, and the Body Corp relies on information from tenants like you to keep everything working well for everybody.

  It sucks, but it's not fair the owner should cop the loss of his garden - it certainly wasn't their fault. If it were me I'd try to work out something inbetween with your PM.