Gardens: why the grass is not always greener for landlords

Many home owners look upon their gardens with pride and as an asset to be enjoyed and cherished; a place to relax and sit out, a safe place for their children to play, or perhaps just a pleasant view to enjoy when they wake up each morning.
Sadly, landlords and their tenants often have other less positive experiences.  Disputes with neighbours concerning tenants' rights, boundaries, trees, noise, and nuisance are on the increase.  There are press reports of garden owners being subject to injunctions in respect of barking dogs, crowing cocks, and being fined for not cutting back their prize trees.  A newspaper hotline was recently said to have received hundreds of phone calls complaining of overshadowing leylandii and a considerable number of garden-related disputes end up in court.

Tenant's viewpoint

For the tenant, it is not his property and he will not have the same long term interest in keeping the property neat and tidy, planting new flowers and the general pride that comes with ownership.  
Moreover, he may have inherited the gardens in less than satisfactory condition when taking over the property - it is a rare breed of tenant that will take on an overgrown garden and leave it immaculately tended and maintained.  Similarly, the landlord often has little interest in the gardens - he may have his own to tend and enjoy.  They are often seen as an inconvenience and source of contention.  Indeed, a garden is as often a deterrent as it is an asset to a prospective new tenant.

An asset to be protected

Gardens need to be carefully managed from the landlord's and agent's point of view.  They can hide a variety of potential problems and hazards.  The garden can also comprise a significant part of the value of the property, and like any asset, it has to be maintained in order to preserve its value.  Trees although an increasingly unusual, but pleasant sight in today's urban environment, can also give problems: they represent a hazard when planted too close to buildings and drains where roots can cause subsidence or block drains.  Others will need regular and careful pruning.  Trees may even be subject to a tree preservation order and cannot be pruned without permission.  Some of the general rules and implications for the landlord will be explained in this article.

Legal background

In many cases, a garden will automatically form part of the letting of the dwelling-house under an assured or assured shorthold tenancy (AST).  The Housing Act 1988 states(1) that:
'If .. a dwelling-house is let together with other land, then ... if and so long as the main purpose of the letting is the provision of a home for the tenant, or where there are joint tenants, at least one of them, the other land shall be treated as part of the dwelling-house.'
Thus, with the exception of three specific and slightly uncommon situations (discussed below) a garden held with the house will clearly be automatically included in an assured or AST tenancy.

Exceptions

The main exceptions relate to agricultural land, agricultural holdings and land used for commercial purposes.  For example, a property cannot be let under an assured or assured shorthold tenancy if the dwelling-house is held with agricultural land exceeding two acres(2).
Like most things in law, the definition of "agricultural land" is far from straightforward but will include:
(a) land used as arable, meadow, pasture only,
(b) land used for plantation or a wood or for the growth of saleable underwood.
(c) land exceeding 0.10 hectare and used for the purposes of poultry farming,
(d) anything which consists of a market garden, nursery garden, orchard or allotment.

But agricultural land does not include:
(a) land occupied together with a house as a park,
(b) gardens (other than market gardens),
(c) pleasure grounds,
(d) land used mainly or exclusively for purposes of sport or recreation, or
(e) land used as a racecourse.

Thus, for example, the letting of a country cottage, which includes stables and over 2 acres of meadow for grazing horses would probably be excluded from the protection of the Housing Act 1988.  How can one tell ?  The clue lies in the origin of the regulations - the Finance Act.  Almost certainly, agricultural land will be held in separate category in the local authority planning and rates registers. 

Business and agricultural use
Two final exceptions apply if the tenant is using the garden for any type of trade or business (including agriculture).  If the proportion of business use is significant, then it is possible that the tenant can gain additional security of tenure.  For example, if the garden is used for agriculture and is used for a trade or business then the Agricultural Holdings Act 1986 may apply - one consequence of which is that the landlord must give the tenant at least 12 months' notice to quit.  For this reason, most residential tenancies contain a covenant which prevents any type of business use.

Management issues

There are no formal requirements or even standard practices relating to the letting of the garden unlike the main dwelling where it would be common procedure for landlords and agents to supply an inventory and schedule of condition.
Although the situations are different (a garden is constantly growing whereas the condition of dwelling is hopefully more static) the objective will be the same - to return the garden at the end of the letting in the same or similar condition as when it was originally let.

Seasonal variations and growing patterns mean that a garden can never be returned in exactly the same condition, and many tenancy agreements allow for this factor.  Commonly, the tenant will be required simply to 'keep the gardens neat tidy and properly tended at all times'. Sometimes, however, the covenant will be more specific:

'to maintain the garden of the Property in neat and tidy condition, keeping lawns cut, flower beds and borders free of weeds and generally cultivate the garden in a reasonable manner and condition according to the season of the year'

Clearly then, unlike counting the teaspoons on the inventory at the end of the tenancy, checking the condition of the gardens can never be an exact science due to the inherent difficulty of making an exact record its condition at the outset.
Some common sense needs to be applied before making any recommendations here - a detached house with extensive and immaculately maintained gardens will require a different level of attention and supervision than a small backyard or square of turf in the back of a  terraced townhouse.

Where there are substantial gardens, probably one of the best ways, in the author's experience, is simply to take appropriate photographs of the gardens at the outset of the tenancy.  If it appears that the gardens have been neglected during the tenancy, then outgoing photographs should also be taken that will support any financial claim or deductions required to have the gardens maintained and restored after the tenant's departure.  If the claim subsequently ends up in the Small Claims Court, then the court will expect a competent landlord to furnish photos and related information to support the claim.

An Englishman's garden

Apart from the above, there are few other general restrictions on what an Englishman (owner or tenant) may or may not do in his garden provided that his activities do not cause a nuisance to his neighbour.  
The Misuse of Drugs Act 1971 makes it illegal to grow cannabis and cultivate banned drugs such as coco leaf or poppy straw.  As to other potential drugs such as the opium poppy or mushrooms containing psilacybin ("magic mushrooms") it is not an offence to grow them, but it is to dry the stalks or freeze or process them.

Property managers and landlords are, however, not expected to be either plant identification experts or garden police - s.28 of the Act provides a defence where the accused person proves that he neither knew, nor had reason to suspect, the existence of some fact.  Equally, the exception protects innocent gardeners - it is possible that some teenagers could plant cannabis in an old person's allotment without him knowing.
Of the remaining freedoms one is allowed in one's garden, it would however be prudent for the occupier (or his family or visitors) not to sunbathe in the nude and to refrain from sexual acts because these may:
- be contrary to local bye-laws, or
- amount to indecency(4)

Hidden dangers

A recent report from the Royal Society for the Prevention of Accidents estimates that there are 350,000 garden accidents every year from being poisoned by plants, garden forks piercing feet, being maimed or electrocuted by grass cutters (25,000 accidents) hedge trimmers etc.
The garden can be a dangerous place and care must be taken, particularly where old people and children are concerned.  A landlord should ensure that his house insurance policy includes garden accidents, that there is no particular liability limit and also that it covers death and injury not only to tenants but also to visitors and other third parties.

Liability to visitors

Often persons other than members of the tenant's family may come into the garden, e.g. guests, the postman or milkmen and innumerable others who may visit by invitation, express or implied as part of their employment.
Under the Occupiers Liability Act 1957 the occupier of the dwelling (or garden) has a duty of care to ensure that any visitor is reasonably safe for the purpose that he or she is invited or permitted to be in the gardens. Although the liability in the case of rented property will lie primarily with the tenant who has exclusive possession of the premises, liability may extend to the landlord where the landlord controls common areas - e.g. the entrance hall, staircases, lifts etc. in a block of flats.

Under the Act, the person having control of the gardens (again, normally the tenant) must ensure that the garden is kept free from hazards such as unfenced ponds, lack of handrail on steep steps, dangerous garden machinery etc.  A swimming pool also poses a potential risk, particularly for young people.  Although the Act does not require it, good practice and common sense suggests that landlords and their agents should draw their tenants' attention at the outset of the tenancy to any such dangers in and around the property.  Equally, for the low cost and peace of mind that they bring, landlords should guard against the hazards posed by using electical garden ppliances (e.g. lawnmowers and hedgetrimmers) by supplying a RCD-protected electrical supply socket which will isolate the supply and help prevent electrocution in the case of an accident.

Animals in the garden

The most obvious problem posed by the tenant keeping his animals in the garden is the nuisance (e.g. barking dogs and crowing cocks(5)) that such animals may cause - an area of nuisance that has been dealt with in an earlier article.(6) Other than the obvious issues relating to the nuisance to neighbouring occupiers, there are a multitude of rules, regulations and case law which govern who, how and what animals may be kept on private land covering stray dogs, horses, bulls (and even escaped pigs) but few issues of great interest.

The keeping of certain wild animals, which includes reptiles such as crocodiles and insects such as tarantulas, is covered by the Dangerous Wild Animals Act 1976 and their keepers must be registered with the local authority who will grant or refuse a licence.  Many people will also be aware that bats have protected status - garden owners must not disturb any building or place (including outbuildings in the garden) with roosting bats; English Nature should be notified.

Pests and weeds

Either the landlord or the occupier may be liable for causing nuisance if the garden is allowed to become a refuse tip, or breeding ground for pests or plant disease which spreads to adjoining owners' property causing damage.
This area of public nuisance is largely governed by the Environmental Protection Act which introduces the concept of a "statutory nuisance" - i.e. where there are "premises in such a state as to be prejudicial to health or a nuisance."(7)
Local authorities have a duty to inspect the local area for statutory nuisances (SN) and to take reasonable steps to investigate any complaints received.  The local authority, once satisfied there is a statutory nuisance, will issue an abatement notice saying what must be done and when it should be done by.

There are also statutory controls over specific types of pests. e.g. rats and mice(8).  Where such infestation has occured, the local authority should be consulted (contact the environmental health department). They will normally send a pest control officer to assist in removing or killing the vermin.

What if the tenant complains about a pest infestation in the garden - e.g. a wasps' nest.  Who is responsible ?
Generally, there is no obligation on the landlord to ensure that the property or its garden does not become infested with pests(9) unless the infestation is as a direct result of the landlords' failure to repair or if it could be proven that the infestation arose from any common area under the control of the landlord. 
Sometimes the local authority will assist, but otherwise the tenant will have to make his own arrangements to remove the pests.

There is an exception to this rule.  Where a property is found to be infested prior to the occupation of the tenant, then the tenant has the right to reasonable enjoyment of the property, and this would include expecting the landlord to take steps to remove the pests, or allow the tenant to give early notice(10).

Games in the garden

Occupiers and their children and guests will, from time to time, enjoy the use of a garden for playing games and similar recreational pursuits.  Golf practice, cricket or football may result in balls being hit out of the garden.  The occupier will be liable to neighbours for broken windows and for injury to persons using the public highway under the usual laws of nuisance and negligence.

Where the ball passes into a neighbouring garden, it will constitute trespass to go and collect it without permission.  Yet, the ball does not belong to the neighbour and so it should be returned on request - although a case heard in 1948 found that lost or abandoned golf balls appears to vest in the owner of the land on which they are found(11).

Boundaries and fences

One of the commonest types of dispute concerning gardens stems from property rights between neighbouring private properties, especially as to walls, fences, hedges, overhanging branches, root encroach-ments and access to neighbouring gardens for trimming hedges and trees, and other conflicts 'over the garden fence'.  What then, of the fence that blows down in a storm, or where the neighbour erects a new high fence which affects the light reaching the property ?

Maintenance of boundaries will depend on the ownership and the landlord, should have access to such information in the title deeds to the property.  The obligation to maintain rests with ownership.  With walls and fences these may be jointly owned but with hedges and other growing boundaries the position is less clear. In the case of Jones v. Price(12) whilst the court discussed 'party hedges' Lord Diplock doubted that a 'party hedge' could  exist. On that assumption a hedge must belong to one or other of the adjoining owners. Perhaps this is an area where good neighbourliness, pleasant and effective communication and common sense are paramount.

Where boundaries are unclear or where there is nothing in writing that deals with the ownership or maintenance of boundary fences or walls, then evidence such as previous repair or maintenance can help to clarify who owns and maintains the fence or wall.  Also, the construction of a fence may help decide ownership - in the case of a fence with struts on one side, it is presumed (if no other information is known) that the owner on that side owns and is responsible or maintaining the fence.
Where the wall or fence belongs to the adjoining owner, the garden owner has no right to attach buildings (e.g. greenhouses) to put up a trellis, or put nails into it.  Even growing a creeper up a neighbour's wall can, strictly speaking, consititute trespass - a fact fortunately ignored by most reasonable neighbours.
Alternatively, it may be that a wall or fence is a party wall - that is to say, it is deemed to be owned by the adjoining owners jointly and so the responsibility for maintenance can be amicably split.

Trees

Trees (especially the tall fast-growing leylandii variety) are a frequent source of conflict and friction.  Such is the concern on this issue that more than 200 MPs recently signed an early-day motion calling for controls. Hedging, whether along a pavement or between neighbouring properties, can also pose problems.

At present a hedge or bush which overhangs an adjoining property may be trimmed back to the boundary but no further and the trimmings returned to the owner.  Good neighbourliness would suggest that the tenant should ask first before just throwing them over the hedge as the neighbour may be perfectly willing for the tenant to dispose of them.  This right will be limited if the property is in a Conservation area, area of outstanding natural beauty or where a tree is subject to a Preservation Order(13) (where permission needs to be obtained from the local authority in order to trim or prune).

Right to light

The Highways Act 1980 gives extensive powers to the Local Authority to insist on both hedges and trees be lopped if they are considered to interfere with the highway, even where they interfere with the light14. The issue of light in respect of neighbours property is less clear.
Whilst the issue of the right to light is complex(15) it can be said that, at present, there is nothing to prevent excessively high hedging unless it is contrary to a particular planning decision or that it affects the light of a building to the extent that it causes a nuisance(16). However, given the degree of publicly expressed concern, this may well change.

Roots

Tree roots may also cause problems.  In Butler v Standard Telephone, trees were planted whose roots, which extended under the neighbour's land, sucking moisture from the clay soil under the houses, leading to subsidence and cracks in the walls.
Although the roots may well have 'trespassed' into the neighbouring property, a claim for nuisance is the correct approach, and, in this case, was upheld by the Court despite an argument from the defendant company that it could not be liable as it had no reason to realise the trees were causing damage.  It ruled that anyone who plants trees ought to appreciate their destructive potential and indeed guidance is now available which recommends minimum planting distances from nearby buildings for different types of trees. 



References
1.  Housing Act 1988, s.2(1).
2.  Housing Act 1988, Sch.1, para 6
3.  Local Govt Finance Act 1988, s.2
4.  An offence under the Vagrancy Act, 1824.
5.  Hunt v WH Cook (1922) 66 Sol Jo 557 The reader may recall the Devon case of Corky the cockerel reported in the national press in 1996
6.  See Letting Update, Oct 98, p15
7. Environmental Protection Act 1990, s.79(6).
8.  Prevention of Damage by Pests Act 1949 (rats, mice, insects and mites).
9.  Habinteg Housing Association v James, (1995) 27 HLR 299.
10.  Smith v Marrable (1843) 152 ER 693
11.  Hibber v McKiernon [1948] 2 KB 142.
12.  Jones v. Price [1965] 2 QB 618
13.  See Protected Trees - DOE boolet.
14.  Highways Act 1980, s.136
15.  For further information, see Gardens and the Law.
16.  See Letting Update, Oct 98, p18
17.  Butler v Standard Telephone and Cables [1940].