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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.

8 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

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!

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.

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