Gardens

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A garden often automatically forms part of the letting of a dwelling house under an assured or assured shorthold tenancy. Section 2(1) of the Housing Act 1988 states that where a dwelling house is let with land, the land will be treated as part of the dwelling house wherever the purpose of the letting is the provision of a home for the tenant. As a result, with the exception of agricultural land, agricultural holdings and commercial property, land held with the house will automatically be included in an assured or assured shorthold tenancy.

Unlike the letting of the dwelling, there are no formal requirements or even standard practices relating to the letting of the garden. However, as with the dwelling, the tenant will be expected to return the garden at the end of the letting in the same or similar condition as it was in when originally let. This is usually just an obligation on the tenant to keep the garden neat and properly tended, but can be more specific if the landlord so wishes. Where gardens are substantial it can be helpful for the landlord to photograph the gardens at the beginning of the tenancy, as evidence of their original condition.

Generally, the landlord has no obligation to the tenant to ensure that the property does not become infested with pests, unless infestation is a direct result of the landlord’s failure to repair or arises from any common area under the landlord’s control. Sometimes the local authority will assist, but otherwise the tenant will have to make his own arrangements to remove the pests.

Maintenance of boundaries will depend on the ownership; only the owner is obliged to maintain the boundary so if the landlord is not the owner then he cannot be compelled to do so.

Trees and hedges

A tree or shrub belongs to the owner of the land on which it grows, even if its branches or roots go over or under adjoining land. A hedge or bush which overhangs a neighbouring property may be trimmed back to the boundary, as the overhang of the branches constitutes trespass. However, they may not be cut back any further. The trimmings should be returned to the owner. Roots growing across a boundary line may also be chopped along this line.

However, the rights of the neighbour might be limited by any Tree Preservation Order to which the tree in question is subject.Â

Hedges

Part 8 of the Ant-Social Behaviour Act came into force on 1st October 2004, and introduced a procedure to be administered by the local authorities to deal with complaints concerning high hedges. If the local authority issues a remedial notice, a fine of up to £1000 may be imposed on the recipient if they ignore it. The local authority will also have the power to carry out the necessary work and recover the costs from the owner.

For an applicant to be successful, they will need to prove that reasonable enjoyment of a domestic property would be adversely affected by the height of a high hedge on land owned or occupied by another person.

An action and support group named Hedgeline formed some years ago has helped resolve numerous neighbourly disputes and has campaigned for improved legal powers against nuisance hedges.

Nuisance

Either the landlord or the tenant may be liable for causing nuisance if the garden is allowed to become a refuse tip or a breeding ground for pests or plant disease which cause damage by spreading to adjoining owners’ property.

The owner of trees (person on whose land they are growing) may be also be liable for nuisance where the trees cause subsidence to other property, even where they have no reason to realise that the trees were causing damage. Where a tree extracts moisture from beneath the foundations of a neighbour’s property and causes it to subside, the owner of the affected property is not receiving the quiet enjoyment of his property that he is entitled to.

The owner may claim damages or an injunction compelling the neighbour to remove the tree.

The Town and Country Planning (Trees) Regulations 1999 provides for compensation for subsidence damage which is caused by trees subject to preservation orders, as they cannot be removed.

The occupier of property may also be liable in nuisance or negligence for damage and injury caused by balls hit out of the garden.

For further information, see Negligence or Nuisance.

Housing Act 2004 Issues

A large majority of disputes arising under the tenancy deposit protection (TDP) schemes involve cleaning or remedial work to gardens. It is important that landlords make detailed notes, including photographs if applicable, showing the state of the gardens before and after the tenancy. The photos and any subsequent inspection/check-out report should be dated to avoid further dispute.