The burning question: Smoking in rental properties

According to Public Health England, Britain has the second lowest smoking rates in Europe (topped only by Sweden), and if the current rate of quitting carried on we’ll be Smoke Free by 2030, with less that 5% of the population classing themselves as a smoker.

However, despite the flood of people kicking the habit, there are still plenty of adults sparking up across the UK, with 14.9% of the population still smoking on a regular basis – although 60% say they actively want to quit.

There’s plenty of help too. As we work our way through October, ‘Stoptober’ the NHS-supported bid to encourage people to stop for at least 28 days, is fully underway. So, what is a landlord to do? Cut out a significant swathe of the population (nearly 15% is not to be sniffed at) or embrace the nation's smokers?

What is the legal standing?

The SNP spoke in July about banning smoking in local authority housing in Scotland, after a blanket ban on smoking in social housing was successfully introduced in New York. The whisper caused controversy amongst pro-smoking groups, but was later debunked by the Department of Health and Social Care.

However, this idea is not just political planning for some landlords. If you are a landlord of an HMO, any shared areas of your property are impacted by the National Smoke Free Legislation, just like any other public building in the UK.

The shared areas, including kitchens, bathrooms, staircases, entrances and toilets, are all open to residents and contractors, and therefore must comply with smoke free regulations.

This means that you have a responsibility to display appropriate signed and notices to ensure that your tenants are aware that they are in a ‘smoke free’ area, and enforce a smoking ban in these areas.

Private rooms within an HMO can be smoked in, but this would be at your discretion, and it must be made very clear that your tenant is only allowed to smoke in their own room, not in any of the public areas.

Can I evict a tenant who is smoking in my property?

You can include a clause stating that smoking is not permitted in the property within your tenancy agreement, and if the tenant asks for your consent to smoke, you can refuse.

If your tenant subsequently smokes in the property, thus breaking the terms of the tenancy agreement, you would assume that you would be able to regain possession of the property using a section 8 notice, right?

Well, you could give it a go, but unfortunately, you may find your bid for possession stubbed out at court.

Section 8 notices are enforced at the discretion of the court, and it is likely that granting possession for this breach, as long as your tenant is still up to date on rent and otherwise keeping to the terms of the tenancy agreement, is a breach of the tenant’s ‘quiet enjoyment’ of the property, and that you are not able to stop them doing something they enjoy in their own home. Alternatively, you could be asked to provide proof of the tenant smoking in the property, which would be very tricky to come by – it’s likely to be your word against theirs.

How much damage does a tenant smoking cause to a property?

So, from a legal point of view, you may not be in the strongest position if your tenant decides to spark up inside your property. However, you should assess how bad the situation is in reality.

If you have a considerate tenant, who manages their smoking sensibly the worst situation you are likely to be left with is a lingering smell and staining on paintwork and soft furnishings. There’s no disguising the smell of smoke within a property (although there are plenty of candles, air fresheners plug ins etc that do profess to mask the smell!), and the best way to get rid of is it to redecorate the rooms that are affected.

If your tenant knows that they are not supposed to be smoking in the property, it is possible that they may have limited their smoking to one room. Whilst this should help, actually it may make the situation trickier to manage, as the smell of smoke will permeate the rest of the property anyway (it’ll cling to them and their clothes, and transfer that way too!) and the room that has take the full force of the smoking may have suffered significant damage. In this instance, you may need to take more drastic action, such as replacing carpets and furniture in this room.

Whilst this is frustrating, consider your normal actions when you switch tenants. It is likely that if you have had a tenant in place who has been able to pursue their lifestyle choices (smoking) in a property that suits their needs, they are more likely to stay long term. If you have had a tenant in the property long-term, might it not be possible that you would have redecorated the property anyway? If so, is the procedure hugely difference to the work you would have to have done for a ‘normal’ non-smoking tenant?

There is one additional cost to consider though. Your landlord insurance may be set for a non-smoking tenant if this is what you thought you had. If your tenant actually is a smoker and you discover this, make sure to contact your insurance company and change your policy, If anything were to happen to the property caused by smoking, you could find yourself uninsured if you don’t.

Can I use the deposit to pay for damages?

If there is residual damage at the end of the tenancy, that puts the property in a worst state that it was in at the start – wear and tear notwithstanding- you may be able to claim for some of the damages.

It’s unlikely that you will be able to claim for redecoration, as this is likely to be classed as wear and tear, however if there is a burn hole on the carpet, you can legitimately claim this back as damage.

As ever with deposit claims, do make sure you have an inventory in place at the start of the tenancy. Without this, you will have very little to go on, and it’ll be hard to claim anything back.

E-cigarettes / Vapes

Over 2.3 million adults in the UK already use e-cigarettes or vaping as an alternative to smoking, and it is growing in popularity. This year’s Stoptober campaign is passionate in the benefits of e-cigarettes, and data from Public Health England suggests that 63% of people who tried to quit using one were successful.

An e-cigarette is powered by a rechargeable battery, and uses liquid nicotine to produce a mist, or ‘vapor’ which is then inhaled, it doesn’t require any flame to burn. Once dispersed, this vapour leaves no trace, unlike traditional smoking. This makes it almost impossible to detect should your tenant choose to partake in your property.

With regards to HMO landlords maintaining the Smoke Free Legislation, it has been acknowledged that there is ‘no one size fits all’ framework for the use of vapes and e-cigarettes in public places, and Public Health England urges businesses to create their own policies surrounding the use of e-cigarettes, based on five principles:

1. You should make clear the distinction between vaping and smoking.
2. You should ensure policies are informed by the evidence on health risks to bystanders.
3. Policies should identify and manage risks of uptake by children and young people.
4. Policies should support smokers to stop smoking and stay smokefree.
5. Policies should support compliance with smokefree law and policies.

Do you let tenants who smoke rent your property, and if so, do you have any special rules? Let us know in the comments!