Stoptober gets started! What to do if you don't want smoking in your property

It may not be that the tenants are heavy smokers – they may be social smokers or have visitors who smoke - but whatever the reason it puts the landlord in a dilemma if the tenancy states that smoking is not permitted inside the property. So what are the options?

Discourage your tenants

In reality, there’s probably nothing you can be do to stop a tenant from smoking in the property, even if the tenant signed a tenancy agreement which states that smoking is not permitted inside the property.
In the event where you have caught your tenant smoking inside your property, or you suspect they have been, the best approach is to ask them to only smoke outside. Nicely, of course.

Warn them you could retain part of the deposit

You may have grounds to use the deposit for a professional clean at the end of the tenancy to remove any stains caused to interior walls and fabrics by smoking. You may wish to warn them of this. However, in order to enforce this, you will need to rely on a good inventory which was drawn up at the beginning of the tenancy. Otherwise it may be difficult to prove that the damage was caused by the tenant. Of course, if the tenant is a decent human being, they could just accept liability and cover the expenses.

Take legal action

If you feel strongly about the tenant smoking and are prepared to lose your them, then there is the route of eviction.
The landlord’s grounds to evict the tenant for breach of the lease (Section 8 notice: Ground 12: The tenant has broken one or more of the terms of the tenancy agreement, except the obligation to pay rent) are enforced at the discretion of the court, and a court is very unlikely to grant possession because the tenant is smoking in the property, especially if the tenant is paying rent on time. It’s probably not worth trying to go down the legal route using Ground 12. You’ll most likely end up throwing money down the drain.

It would be worth considering Section 21 - a section of the Housing Act 1988 that allows landlords to seek recovery of possession of a property which has been let on an assured shorthold tenancy. But a Section 21 can’t be issued within four months of the start of the tenancy and you have to give two months notice, so the tenant will be in the property for at least 6 months. In order to issue a Section 21 you would need to fulfill a number of requirements as detailed in Urban’s Section 21 advice.

Be aware of the law if you are landlord of a house with multiple occupancy

The regulations for smoking in HMO’s (House with multiple occupancy) somewhat varies. The Smoke-free (Exemptions and Vehicles) Regulations 2007 make it an offence to smoke in the shared parts of residential premises. This could include hallways, corridors, kitchens, bathrooms etc. Owners/managers of premises are advised to put up appropriate no smoking signs. The local council not the police are in charge of enforcing the Smoke Free law but there are penalties for the person who manages a Smoke Free Place, if it is not maintained. More information can be found at SmokeFreeEngland.

Get non smoking tenants

One of the best solutions is to try and tackle the problem at the early stages - during the tenant finding stage. Essentially, finding a tenant that doesn’t smoke is the best solution.

• Ensure that all your adverts clearly state that you’re looking for NON-SMOKING tenants only
• During the viewing, ask your tenants if they smoke, and remind them that smoking is not permitted inside the property
• Most tenants know that most landlords are looking for tenants that don’t smoke, so they will often bend the truth as their choices are limited otherwise. In this case, try and look for signs for smoking habits during the viewing. As said, the smell of smoke generally grips onto clothing and hair for its dear life
• While it may prove to be futile, it’s still worth putting a clause in the tenancy agreement which states that smoking inside the property is not permitted. It’s also worth going through all the clauses with the tenant just before they sign the tenancy, so they’re reminded of the clause.

Apply a premium rent

Another way to deal with any damage caused by a smoking tenant if you decide to let to them, is to require a premium rent. It doesn't need to be much, maybe 5%, just enough to cover the costs of a redecoration.

The good news is that smoking rates in England having fallen to the lowest on record - in 2015, only 16.9% of adults described themselves as smokers, so hopefully it will become increasingly less of an issue.