By Peter Vickery, Esq., Legislative Affairs Counsel
Who should mow the lawn and rake the leaves? Some property-owners prefer to hire a yard-care contractor and fold the cost into the rent. Others give the tenants an option: A higher rent that includes third-party lawn maintenance versus a lower figure that does not, with the onus on the tenants to either hire somebody or do it themselves.
But what about paying your tenants – or letting them work in partial lieu of rent – to take care of the yard?
Into the Long Grass or Into the Weeds
If you are going to pay somebody to maintain your yard, you want them to do it well. You know what you mean by “well.” Perhaps the tenants do too. So if your tolerance for risk is high, you could leave the yard-maintenance language vague (“keep the yard neat and safe”) and hope for the best. In other words, punt. Kick it into the long grass.
Alternatively, if you are more risk averse, you should describe the level of maintenance you expect. The best assurance that the other party understands and agrees with your definition is to write it into the contract. That means getting into the weeds. How often do the tenants have to mow; once a week, every week? If there’s a drought, do they have to water the lawn and plants?
Another issue to address is quality control. Somebody needs to decide whether the yard-care passes muster, and you do not want that somebody to be a code-enforcement official. Even if your lease describes your expectations with crystal clarity, what happens if you and the tenants differ on the question of whether their efforts meet those expectations?
Then there is the matter of value. What is the tenants’ yard-work worth to you: $11.00 per hour (minimum wage) or more than that? The dollar-value that you put on their time – vis-à-vis your time or the local market rate for grounds-keeping – will determine how much of a break you will give them on the rent. This figure should not be something you leave up in the air.
As with other contractual relationships, how far into the weeds you go (i.e. the appropriate degree of detail) may prove important down the line, particularly if you have to bring the tenancy to an end.
When deciding whether to pay your tenants for yard work, it is worth considering whether the arrangement would help or hinder your effort to evict them, should that prove necessary. Would it make for plain sailing in Housing Court, or muddy the waters? Is it an easy way out of yard-care woes, or a trap? To answer these questions, put yourself in the shoes of the tenants’ attorney. In a non-payment eviction, for example, think about some of the ways defense counsel might try to turn the arrangement to the tenants’ advantage.
One of the first issues the tenants’ lawyer would likely raise would be the accuracy of your ledger. You allege that the tenants owe two months’ rent. Not so, says their attorney, because you have not taken into account all the yard-work they performed. You want to be able to present the court with reliable documentary evidence of your accounting, evidence that shows exactly who paid what and when.
Massachusetts law requires that landlords maintain safe and habitable premises. As a landlord, you cannot contract your way out of these obligations. See M.G.L. c. 186, §§15 and 15F. Any attempt to exclude or limit your liability will be void, and no amount of artful and imaginative drafting can change that. Among your duties: maintaining the common areas.
Imagine that you have agreed to pay Tenant 1 for maintaining one of those common areas, i.e. the yard. Per the lease, Tenant 1 dutifully waters the plantings and the lawns. What if the Tenant 1 leaves the hose across the walkway overnight and Tenant 2 trips, falls, and breaks her ankle. Who is liable to Tenant 2? Plaintiff’s personal-injury lawyer would say you are.
A final consideration in deciding whether to accept yard-work in lieu of rent is the possibility a claim of discrimination. Massachusetts law prohibits rental-property owners from discriminating against applicants and renters on the basis of disability. If you offer better terms to people who are physically capable of performing yard-work, are you discriminating against tenants who are not? It is all too easy to imagine a complaint filed with Massachusetts Commission Against Discrimination alleging exactly that.
Some have expressed concern over workers compensation or other employment law liability. This may be a legitimate concern, although we don’t know of case law that would establish a general answer. The other concerns raised above (contractual details, general liability, and discrimination) are reason enough — even before considering employment law — to proceed with caution.
If you do decide to rely on your tenants rather than on a professional, ensure that the lease contains the essential terms and that tenants understand them. Be absolutely clear about the yard-care standards, quality-control measures, the rate of pay and number of hours, and keep accurate records. Then, after weighing the benefits against the risks, think one more time about whether you are about to engage in a false economy.