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Rent it Right

Janet Portman, Inman News

Q: We rent a single-family home. When we moved in, I brought my own lawnmower and weed whacker, and used them to take care of the lawn. Now they’re broken, and the landlord refuses to purchase new ones. I was under the impression that the lawn and garden, if not maintained by the landlords, was to be maintained by the tenant but that the landlords had to provide the equipment to do so. Am I wrong? Now the landlords are claiming that if we don’t maintain the yard, they’ll hire a gardener and add the cost to our rent. –Paul P.

Lawn mowersA: From the sound of things, a lot of unquestioned assumptions underlie both sides of this argument. If nothing else, your story illustrates why it’s a good idea to put all essential terms of a rental in writing.

First, here’s the lay of the land regarding maintenance. Landlords are responsible for maintaining the structural and common parts of rental property. Even if they delegate some of these tasks to the tenant (which is common in single-family rentals), they remain ultimately responsible if the tenant does a poor job.

For instance, property owners may be cited for maintaining a nuisance if the property becomes so run down that it attracts vandals, squatters, vermin or otherwise just looks awful, even if the lease specifies that the tenants will handle upkeep. Further, owners may be liable if someone is injured because the property is unmaintained and dangerous. But I’m not aware of any state law that dictates who must do yard work.

When it comes to who does what, landlords and tenants work it out between themselves. Aware that they are ultimately responsible for the property, landlords often don’t trust tenants to do a good job, and hire a gardening service instead. If they want to charge for this service, they factor it in when setting the rent — before the lease is signed. And just as frequently, tenants are happy not to be bothered with the chore.

On the other hand, residents who are capable gardeners (and want to save a bit on the rent) may ask to take on the job, which savvy landlords will agree to for a while, as a sort of probationary period. When the landlord sees that the lawn hasn’t turned brown, the shrubs are trimmed, and the leaves swept regularly, the arrangement becomes final. As to who supplies the tools, that’s something they negotiate.

Unfortunately, you apparently took on the job and supplied the tools without discussing whether the work and the equipment you supplied were considered part of the deal, as a form of rent. This might actually work against you. Sometimes, a person’s actions over time take on the legal force of expressed intentions. For example, landlords frequently offer rentals with appliances, and make minor repairs from time to time, but balk at expensive repairs. Tenants argue — correctly — that although nothing was said in the lease about repairing an appliance, the fact that the landlord regularly maintained it shows that everyone intended for the landlord to be responsible for the appliance, whether it needs a cheap hose replacement or an expensive rebuilt motor.

In your case, having taken on the yard work and supplied the tools, you may have implicitly signaled to your landlord that you were willing to do both as part of the deal — and when the tools wore out, you would be willing to buy new ones.

This theory isn’t a sure winner for the landlord, however, but that doesn’t mean that you’ll definitely prevail, either. For example, suppose you stop keeping up the yard, the landlord begins charging you for a gardening service, and you refuse to pay. The landlord tries to evict you for nonpayment of rent, and after a lot of time and expense, one of you wins.

Or, suppose you purchase the tools, deduct their cost from the rent, and the landlord sues to evict for nonpayment of rent. After a lot of time and expense, one of you wins. Again, you stop tending the yard, things deteriorate badly, and the landlord sues to evict you for not fulfilling your obligations. After a lot of time and expense, one of you wins. You see the pattern — nothing is certain but wasted time and expense, plus a smudge on your credit for having been involved in an eviction (even if you win, in some states).

The wise course for both of you is to get yourselves into mediation if you can’t resolve the problem on your own. Many cities and counties offer low- or no-cost mediation services for landlord-tenant disputes (in addition, small claims courts also offer mediation). A mediator will help the two of you reach a mutually agreeable solution (the mediator does not impose a resolution). When you add up the cost of protracted fighting in court and the consequences to you if you lose, the few hours you spend in mediation will look like a real bargain.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].
Copyright 2009 Janet Portman

See Janet Portman’s feature, Raiding Deposit Raises Legal Issues.
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