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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.

24 Comments

As a Tenant of an Unfurnished House, I should have the right to do inside that property as I see Fit, and, within the Law. Smoking in one’s own house is permitted. Under the law, a tenant of an unfurnished property has property rights, close to ownership. It would set a very dangerous precedent if a landlord would be in a position to enforce life stile such as a smoking ban inside the demised property.

My Smoking cannot have any effect to in respect to any of the furniture, all of which I own. (it is not furnished after all)
The Most of damage that can occur is to the surfaces of the decoration, e.g. Floor Ceiling, Walls and Windows!

A Lick of paint, and a Wash of the Windows, would do that! The carpets are mine anyways

Wrong. Smoke damages furnishings carpets curtains etc. Why should the landlord put up with your foul disgusting habit? Let’s face it, rooms stink, and smokers stink. Get a property of lesser quality where smoking is allowed, or better still save us all from the stench and quit.

You might think you have the “right” to smoke but why should anyone in the surrounding suffer the passive smoke that has clear and strong link to cancer? It is really beyond me why the law does not protect the health of the majority of population who does not smoke. It would save the NHS so much money. At the very least, landlords should have the right to evict tenants based on this. It is a clear breach to the lease if you claim to be a non-smoker but then smoke inside the property (balcony IS part of the property btw) or allow any of your guest to do so. Smoking definitely does stain paint work, let alone carpets, curtains, or furnishing. Buy your own property and smoke all you like inside it – that is your right. It still would not change the fact of how selfish you are – your disgusting habit will still affect your neighbours and the people you live with.

This is an excellent idea. As a non-smoker suffering severe problems from secondary cancer causing smoking fumes from vile individuals directly beneath entering my residency, this is something I have suggested to my Landlord. Who appears to have immediately hamstrung by the difficulty of evicting the reprobate tenants whose tenancy was secured through an agency.

The offending tenants already being violent, shouting racist abuse at another fellow tenant and occasioning the police and fire brigade to visit the property.

As for for the previous commentator, a typical smoker who would would be arguing the toss over the ban on smoking in the work place. Before he mentions cooking smells, they are not cancer causing. Also, how can you not spell when there is spellcheck in this comment box.

Thank you.

As a Landlord myself, I have found the most expensive ‘repairs’ when a tenant moves out is if they have smoked. The nicotine smell penetrates the fabric of the building and no matter how much you wash woodwork, walls, cabinet doors etc, it still seeps through. The smell will always gradually come back through the cleaning products. The best way to illuminate the smell properly is to sand down woodwork and walls, then prime and repaint. It’s costly to the tenant, but most accept it. We have cigarette ashtray type bins out side the front door of the building. It’s difficult to rent a flat beside one where the tenant smokes. Not many people find the smell agreeable.

Hi Nashie, have you tried witholding some of the rental deposit to cover the cleaning cost? It would be interesting what view the administers of the Deposit Protection Schemes (DPS) take. Chris

Spot on! When you rent, effectively it’s your home and you should be free to use it as you wish whilst upholding behaving in a legal manner. My partner rents privately and redecorates every 6 months. The furniture is his so should be of no concern to the landlord or letting agent. Letting agents are meticulous at upholding their leases as that’s what they are paid to do. However, a bi annual letter from them threatening eviction after a property check is extremely stressful for him. Councils don’t have non smoking clauses (apart from in communal spaces) and neither should the private sector be allowed to. Smokers have to live somewhere too!

Wrong! you rent out your house its not your home, its the home of the person you are receiving money from. They have a right to smoke. I am a non smoker and how other non smokers treat smokers is disgusting.

We are interviewing propective tenants for single rooms in our BTL and two have complained of tobacco smell on the top floor. We are therefore at risk of losing income.
We also have a no-smoking cleause in the tenancy agreement, and therefore the smoker is in breach of the Agreement. On those 2 grounds at least, do we have the right to evist and/or claim damages?

I am a house owner, with my next door neighbour living in a private rental. Both the occupants are heavy smokers. As a family of five, we cannot enjoy our garden or hang washing out due to the constant smell of cigarettes. Can I contact the land lord and complain of an I wasting my time?

It is amazing how smokers feel they should have all the rights in the world, yet when someone who is a non smoker says they have a problem with smoke they say suck it up and live with it, their right to choose.

@Gillian Smith. It is not “your home” . You are paying a fraction of the value of the house/flat for the right to live there. You do not pay repairs or maintenance, and if something breaks I bet you don’t fix it you instead complain, and I bet that is when you say to the landlord “this isn’t my house”. Does he redecorate because the white paint starts going yellow, or the place smells? Or is it just furniture he replaces? If they have a clause in the agreement he signed, I assume he read what he signed, then he is breaking a contract he agreed to.

Re council flats, they are looking at changing that and introducing non smoking laws as it is effectively, and can be argued, that as owned by the council that it is actually a government building and therefor falls under the present non-smoking laws. They don’t have the clause because they would have almost empty properties. Private let houses for council housing actually do have non smoking clauses as do nearly all rental property agreements, Short Term Tenancy Agreements.

Cigarette smoke gets everywhere, it seeps through floorboards and ceilings and into wood, carpet, furniture and wallpaper. To the idiots that say it is their stuff and doesn’t matter, news flash for you, your Ikea chipboard furniture is worthless compared to the asset value of the house/flat you are in. So yes that is yours to ruin but the house/flat isn’t.

Smokers would have an easier time of it by just saying I have no will power, no self worth and am an addict. Instead they act like it is their choice and they are cool. If you didn’t smoke, how much money could you have saved and maybe had enough for a deposit, or a nicer place.

Smoking has been shown to cause cancer and other health conditions and it always pains me to see someone smoking and pushing a kid in a pram. Another smoker inflicting it onto someone who isn’t given a choice.

Only found this because I have had some tenants move into a non smoking flat downstairs and within 3-4 days my kitchen stinks of smoke and the flat is starting to smell. So was looking for what I can do to expedite their departure or get money back for my moving costs as the landlord has now breached the non smoking clause of their own agreement, Fun times ahead.

Here here. Smokers are drug addicts. They should be downright more respectful of things that don’t belong to them, and go for a walk and have a fag then. Better still do us all a favour and quit. This includes doing themselves a favour. I am a landlord and it stinks. The house stinks and they stink. The don’t actually have any right to smoke where they want and if they breech the agreement, they should be turned out on the street forthwith. Disgusting stinking habit.

Don’t talk rubbish your going on like you have a vendetta on people that smoke, supposed to be on how to deal with non smoking and smokers problems not for you to slate every smoker that puts a post.

As a rental tenant for 6 years I have lived in many houses that has the no smoking clause in the tenancy agreement, but I still chose to smoke inside the properties. At the end of the day the law only states it is illegal to smoke within a public place, all of my previous landlords have never mentioned they smelt smoke in the property. I think the none smokers are just being fussy, as back in the day when smoking was allowed everywhere I never heard people complaining like they do now. To be honest that law should be reversed as there would be more trade out there is smoking was allowed anywhere.

You are joking, fussy?!!! I am asthmatic which is a result of living as a kid in a smoking home and smoke can trigger a severe reaction! It also stinks, people smoke in public areas and it’s just filthy. We cannot be held ransom by just a few who think they can do what they please.

Smokers are delusional, no one wants their building stinking of someone else’s addiction. I would suggest that smokers, problematic alcohol abusers and junkies should be refused rental properties from the private and public sector. If they can’t find the money to buy a home, due to spending it all on multiple addictions, then they should live in a tent or a shed somewhere as far from others as possible.

Wow just wow! You need to learn some common sense, and maybe a bit of respect before posting such ridiculos negative comments! There’s more to getting on the property ladder and the barriers to doing so than just affordability I can tell you.

I live in a flat and I have a neighbour above and all his smoke comes into my flat to a point when I once entered my bedroom and I could not sleep at 10PM as it was full of cigarette smoke. It is utterly disrespectful of such neighbours. In my lease agreement is says my premises are for “enjoyment of living”. Where is my enjoyment where I have to close my patio door on sunny hot days because of those who are just disrespectful? The corridors are full of warnings that smoking is not permitted, but I spoke to the company who manages the building and they said they can’t stop people smoking inside their flats. All fine and well, but could I go to court and ask the landlord for not letting me “enjoy my living”? I am literally feeling like I am imprisoned!

I am just looking to find out what can be done about the smoker in the flat below mine, when she moved in just under a year ago she was told it was non smoking , but could smoke outside front door .
She did this for a few weeks, then started smoking indoors, now I have no problem with anyone smoking as I know it’s hard to give up but she is as I said a chainsmokers & when her friends who used to stand on doorstep smoking with her now smoke indoors with her too, the building is old & converted so every time they smoke I smoke too, last evening my throat was sore , my eyes sore & I couldnt sleep due to the taste , yes taste & smell if smoke in my home, the landlord has told her 3 times now, she stops smoking indoors for a while then goes back to doing it indoors .
I even text my neighbour when it starts to get bad bit I shouldn’t have to do this, my life is becoming a misery for me now, my home is beautiful , expensive carpets & furniture & good quality clothes all are beginning to smell, I have lived here nearly 4 years & dont want to leave as it’s a beautiful home & neighbourhood .
So does anyone have any ideas what I can do to stop this please ?

Hi Diane, I am sorry that this is happening to you, it is sad that your health and your home that you once enjoy are being ruined by your selfish neighbours who clearly show no consideration to others. Not sure if you have tried contacting the council? https://www.gov.uk/guidance/nuisance-smoke-how-councils-deal-with-complaints
From what you described, it sounds like the nuisance is quite substantial (see under “how smoke complaints are assessed”), and I think there is a good chance that the council might be able to take action, in the form of notice and fines. If even that does not solve the issue then, sadly there might not be much left to do except to move out. Of course this is unfair and outrageous but unfortunately, some smokers are delusional and think that their rights to smoke exceeds all others’ right to simply live their life and not be exposed to (scientifically proven and long established) cancer risk due to passive cigarette smoke.

As a smoker myself I completely agree with the non smoking inside of the building and so forth however I have a question. If there is no no-smoking signs on a communal roofing area which has only one tenant on that floor( but is not on that side of the roof so wouldn’t be affected by secondhand smoke), it is an open area so no ceiling or fences which would stop smoke from escaping, would it be allowed?

I’m a smoker and I privately rent. There is nothing in our tenancy that States I’m not allowed to smoke in the property…. however I have 2 young children and have never smoked around them since they were born so I make the choice not to smoke inside the property. All these negative comments most probably from home ownership regarding it “not being our home” really upset me as I can tell you, it’s the most upsetting disheartening thing about private renting knowing that you never have the security and risk being evicted for no reason at any point. It’s hard enough making it a home when you have ignorant people constantly reminding you “it’s not really yours” yes we may not own it but it’s our home none the less but we still need mental positivity of a secure space we can call our own that we can close the doors to the world when we want to. As for the comment about people not affording to buy a home as they smoke what an absolutely disgraceful, disrespectful insult. Buying a home isn’t just about affordability and there are a whole world of other factors that can prevent people getting onto the property ladder that smoking makes no difference too! So I would suggest you leave your arrogant opinion on that one out of housing forums as it’s quite insulting and a ridiculous statement. As s conclusion. If there is no cause in your tenancy that forbids smoking then legally you can do so and the landlord doesn’t really have any grounds to stop you. Whether you choose to exercise that right or not depends on your own circumstances and opinions on the subject but as the OP was questioning legality and not morals then the short answer is as above. It’s only forbid if there is specific terms in your tenancy stating you’re not allowed.

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