Can Landlords Stop Tenants Smoking in a Rental Property?
Should a landlord let their tenants smoke?
Landlords are acutely aware of the bad smells and damage caused to an interior by a regular smoking habit. But on the other side there are still a lot of smokers out there, and a tolerant attitude to smoking will open a landlord up to the maximum number of prospective tenants.
How many smoking tenants are there?
A recent survey revealed that only 7% of landlords agree to let tenants smoke in their rental properties and yet over 1 in 5 of the population still smoke. So are landlords missing an opportunity? Well, before making any rash decisions landlords of Houses in Multiple Occupation might consider this same research found that smoking tenants are not particularly popular with their flatmates –
- just 19% of fellow tenants said they would be happy to share with smokers,
- 37% of flatmates would share accommodation with smoker if they will smoke outdoor only
- 44% of flatmates generally would not want to share with a smoker.
So it appears that smoking tenants are disliked by the majority of landlords and their fellow tenants.
Another recent survey, this one by Easyroomate found that 38% of private landlords would actually evict tenants who they caught smoking inside their rental property.
Do landlords have a choice if a tenant smokes?
In these days of the Human Rights Act, do landlords have any right to prevent their tenants from smoking in their rental property. Well the short answer is – yes.
It is perfectly possible to add a short clause to prevent tenants from smoking in their property. Our legal partners Fidler and Pepper suggest something along the lines of:
3.7.13 Not to smoke or permit any guest or visitor to smoke tobacco or any other substance in the property, unless the landlord has given written consent
Enforceability of a smoking ban in a rental property
However, the enforceability of this clause is another issue. If the landlord is convinced that a tenant was smoking without their permission; they would first have to gather evidence to this effect. Just to say the room smelt a ‘bit smoky’ probably is not going to cut it in a court of law! To evict a tenant on these grounds a landlord would have to seek possession using one of the fault based grounds for possession such as Ground 12 : The tenant has broken one or more of the terms of the tenancy agreement, except the obligation to pay rent. However, this is one of the grounds for possession where the court has discretion as to whether they grant a possession order to a landlord.
This means that no case is likely to be the same but more to the point, there is little likelihood that a ‘liberal minded’ judge is going to throw a tenant out on the street, for just having, what might be perceived as the ‘odd fag’ in their own home. So therefore, not much chance of a a landlord getting possession. The chances of victory for a landlord where a tenant continues to pay rent are therefore slim. So is there anything else that a landlord can do?
Other approaches to stop a tenant smoking
One way to deal with any damage caused by a smoking tenant is to require a premium rent. It doesn’t need to be much, maybe 5%, just enough to cover the costs of a redecoration. As I said previously, 1 in 5 people still smoke, so being tolerant may give a landlord an opportunity in the market, if you don’t mind redecorating on a regular basis.
The other approach, could be to insist on a higher deposit from a smoker, in the hope that where damage is caused then a landlord would be successful in withholding an amount of the tenants deposit to cover the damage caused by smoking in their rental property. I’m sceptical about how successful a landlord would be in convincing a TDS arbitrator that the damage (which lets face it, often smells worst than it looks) would be even where you have gone to the trouble of carefully preparing a property inventory.
The long and short of smoking tenants is that whilst the law appears to be on the landlords’ side. Enforceability, is a far more complicated, and uncertain process. Unless, landlords out there have a trick up their sleeve, the best option of all seems to try and ensure that you select an honest non-smoking tenant in the first place.
Non smoking in communal areas
Landlords who have properties which have common parts, are affected by the National Smoke Free Legislation. Landlords are required in these properties to have the correct notices and signs displayed so that all of the tenants are made aware of their responsibilities. The templates for the signs can be downloaded from the Smoke Free England website.
This legislation which came into force on the 1st July 2007 means that smoking is not permissible in areas of shared accommodation which can include kitchens, bathrooms, staircases, entrances and toilets. These are the areas that are open to all residents and cleaners if under contract to carry out duties within the property. All Landlords of HMO‘s, shared houses are included, must display the correct notices and signs in compliance with the No Smoking regulations.
Tenancy agreement non-smoking clause
In light of this should we add an optional clause to our free tenancy agreement or have a none smoking clause in the agreement as standard. Please post your views below or answer the poll on the landlord forum or join the discussion on our Property Hawk Facebook Page.