Garden trashed but not on condition report

In Sydney. Tenants were in the property less than a week when they decided to dig up entire garden, front and back - hacked down mature shrubs down to stumps, dumped the lot in the garbage. All natives: one 6m grevillea, one 3m crepe myrtle, three 2m lilli pillis, 1.5m callistemon, westringia fruticosa, dietes, pennisetum grasses, hardenbergia climber, all of it, gone.

After lots of to-ing and fro-ing with PM who has done nothing, finally received condition report - garden isn't even mentioned. Just can't even. What luck do I have in NCAT if the garden isn't even in the condition report?

 

My neighbour sent me photos. I've also arranged to go out and see the property with my useless incompetent agent next week where I will take full inventory of everything that was destroyed. I am absolutely gutted.

Will NCAT accept before and after photos even if the garden isn't on the condition report?

 

That sucks so bad for you, and most LL insurance policies don't cover gardens and grounds! >.<

 

Are they denying they did it? Surely it wasn't random people that did it. If the garden was shown in the advertising that might help. I can't believe it wasn't mentioned or photographed in the Property Condition Report

 

Wow its crazy that your PMs didn't record the condition of the front or rear outdoor spaces, and also rather crazy and sad that your tenants cut it all down

Were there previous condition report photos from the last tenancy or do you have any of your own photos? If it went to NCAT I think any supporting evidence would help. Even an email or letter from your neighbour stating that they saw the tenant cutting down the trees.

Has the agent discussed this with the tenants and found out their motivation? Perhaps it doesn't have to go to NCAT given its only 1 week into the tenancy and they can replace the shrubs which will hopefully grow back.

Also stating the obvious, but you need a new PM.

 

Maybe in their own weird sort of way they thought if they got rid of the garden , they would save money by not having to pay for the water charges for watering the gardens.

 

Yes, I have my own photos.

I've asked my PM to send a letter advising them of the breach and if they don't fix it, send a 14 day breach of tenancy; but I don't hold out much hope.

Oh! The condition report is UNSIGNED. Does that make it null and void??

RE: Water. It's a strata property. I'm paying for water. They just didn't like the plants. End of story.

 

The condition report is prepared by the PM & sent to the tenant to review and sign as a record. If it doesn't come back within 7 days it is accepted as the status.

 

It's theirs to live in until they move out. Perhaps they will replace the plants with similar mature trees when they move out?

 

Shrubs by Silke DW posted 25th Apr, 2019 at 8:04 AM

All mature (taller than 1.5m) shrubs hacked to stumps. The larger circle at the top of the image was a mature grevillea bush around 1m x 1m.

Garden Not On Condition Report by Silke DW posted 25th Apr, 2019 at 8:04 AM

Hacked by Silke DW posted 25th Apr, 2019 at 8:05 AM

this was a 6m tall grevillea tree

 

I don't want to claim on my insurance, I want the tenants to pay to fix it!!!

 

That's not really how it works. They are to keep and maintain in the condition they received it in - fair wear and tear excepted.

If they didn't like them or allergic (my Dad's allergic to grevillea) they shouldn't have rented it. At the very least they should have asked permission to remove and the answer would have been no.

 

Just to clarify, was this there response?

- Luke

 

Luke, can I PM or email you?

 

Yes no problem.

- Luke

 

I think that you're unfortunately going to find that you have little success here, and I know it's enormously frustrating - I'm a keen gardener and have watched the garden I lovingly tendered die under a tenant's ministrations (or lack thereof).

I don't think it would matter how much you'd documented the condition of the garden, plants are, in a legal sense, 'part of the soil to which they're attached' - unless in pots. Only fixtures and fittings are the subject of a condition report, and the plants, lawn, etc., aren't either - they're legally 'land'.

It doesn't mean that you have no remedy whatsoever, but it makes it highly unlikely, and if you did have one, it would be based on the value of the land - excluding the improvements (buildings) on it last week, when it had the plants - vs the value of the land this week after they've removed those plants. It wouldn't be based on the cost of replacing the plants, because that's simply not how they calculate damages with respect to land, that's the method used for fixtures and fittings.

The estimates of any value for the land are almost certainly going to vary more than the difference, ie nobody is going to be able to say with any precision that the land was worth $225K last week, and $223K this week, and so they owe you $2,000 for example. The tenants will dispute the precision of the valuations and get other valuations showing that the plants made no difference to the land's value.

Unfortunately, that means that unless somebody removes a large number of historic trees that are worth a significant % of the land's value, destruction of plant matter (that is planted in the soil), is largely something that you can't do anything about.

If you have a valuable garden, you may be able to include a special condition in the tenancy agreement requiring them to maintain the plants with a liquidated damages clause for failure to adhere to it, though I'm not entirely sure even that would be enforceable - seek legal advice as this isn't my specialty area.

 

I'm not sure I agree. Whenever my tenants kill the grass at one of my IPs they cost to put in new grass is taken out of their bond. I would expect they are responsible for plants too.

 

That's great if you can get away with it; I'm saying if they challenged it, I don't think it would stand up.

But I'm talking about the common law position, and only checked that NSW didn't have a statute that overrides it. You may have a statute in WA that does, or maybe there's case law that I'm not aware of (and a bit of research in legal databases couldn't find), in which case, more than happy to stand corrected.