Triple problem; Builder, renters and the HOA

[J W.]

I recently built a new home for use as a rental with a production builder in my area. We got a good deal that closed in January this year just before a huge market surge in building and housing prices. Due to it being the middle of winter which have negative temps here, the builder could not install lawn, trees, sprinklers, etc and had those items escrowed to be installed by June 1st. The title company is holding back 1.5% of the purchase price until the yard is installed. As you can see by today's date, the yard is not installed and this is causing a problem with the tenant.

The tenant is expecting a yard and is angry that they do not have one. The lease indicates the tenant will take care of all yard maintenance. They do not currently have an installed yard from the builder but they do still have the empty unfinished lot. Because the builder has not installed anything, the tenant has done no upkeep of the lot and now has a weed forest. I got a nasty email from them the other day indicating that their toddler can no longer go outside in the empty lot due to the weeds (2-3 feet tall). To top this off, the HOA sent me a warning letter indicating that the tenant is no complying with the CC&Rs due to not controlling the weeds. The tenant claims they are "not responsible for the problem" as it wouldn't be like this if the builder had installed the yard. Of course taking responsibility for watching the weeds grow up around them for the past 3 months without lifting a finger never occurred to them.

I'm looking for suggestions. The lease indicates the tenant is responsible for pulling weeds. The lease states the tenant is responsible for any fines incurred from the HOA. It also indicates that their rent will be raised by a minimum of $100 if they do not maintain the yard and I need to bring in professional help. I can understand why the tenant is upset. I'm upset with the builder for failing to live up to the contract. The builder says they are following the contract and the Title Company is now withholding the final 1.5%. Obviously it is not enough to give them incentive to finish the work. Their sales people for the builder have told me multiple times (I've been after them to finish in April, May and now June) that we "are not a priority" because our yard is in escrow hold where other homes they are finishing now are not allowed to have yards in escrow hold at closing (no weather reason for not having it done). They want the live new money from new closings rather than the minimal returns for expenses they have not paid contractors for yet.

I cannot get the yard installed any faster. I've already paid for it. I'm concerned that if I take legal action against the builder then they will stop any processing or pull us off of whatever list they might have us on until we go through the courts. I have considered the Better Business Bureau with a complaint. I have considered playing hard ball with the tenant and raising their rent, but I also understand where they are coming from. I've also considered hiring a contractor to remove the weeds to smooth things over temporarily. I have considered going over to the house to pull the weeds myself (but I'm late 40s and disabled which makes that work very difficult). 

As a side note, the home is one lot away from the local children's playground and community pool out the back door (one of the reasons I liked the lot) and there are other parks within close walking distance. You can see another from the front porch. The tenant is not REALLY stuck as far as another outside play alternative.