This is the second post looking at the ten most common tenancy agreement breaches by tenants, as identified by Direct Line in their survey, which I discussed in the introduction to this series.
The Direct Line survey gives the percentage of tenants who smoke inside the property as 21% which is quite high. Obviously at least one in five tenants smoke.
As regards the penalties, to a certain extent it depends on where you smoke.
The Smoking Regulations
Under the Health Act 2006 regulations came into force in April 2007 smoking is now prohibited in all premises which are ‘open to the public’. This does not apply to private residential accommodation – however, there are some exceptions. These include:
- Areas used in common in relation to more than one set of premises
- Private dwellings that are used or visited as a place of work by one or more people who do not live there (except where that work is providing personal care; domestic work; maintenance; or installation, maintenance, or removal of any services)
- Bedrooms in hotels, guest houses, inns, hostels, or member’s clubs that are not designated as a smoking bedroom; and all dormitories
So if you live in an HMO where you have your own tenancy agreement for your own room – you will be breaking the law if you smoke in any living areas which are shared with other tenants.
If your landlord has an HMO license it is also likely that the license will specify that the whole property must be smoke-free (as among other things, smoking is a fire hazard).
So if your landlord allows you to carry on smoking in the common areas in most HMOs – and anywhere in an HMO if the license prohibits smoking – he will be in trouble. He could even be prosecuted and fined by the Local Authority.
He will, therefore, be under a duty to ask you to stop – and if you carry on smoking regardless, he will be well within his rights if he asks you to leave.
In some properties you will be allowed to smoke either in your room (for an HMO) or in the property for a normal tenancy (although the number is dwindling). However, you will still have the next problem.
Deductions from your deposit
The other thing about smoking – apart from the health and fire safety aspects, is that it makes the premises smell and can also make them dirty. So if at the end of your tenancy the checkout inspection reveals that the curtains stink and there are nicotine stains on the wall – the cost of cleaning will be taken from your deposit.
Which could be expensive.
All in all, you should make a real effort to smoke outside the building. It will be better in the long term.
Thanks Tessa. What do you think about:
a) Fines for tenants ‘caught’ smoking (I have seen such clauses in tenancy agreements, particularly for HMOs). Would you consider these clauses to be considered valid/enforceable?
b) The landlord’s chances of regaining possession under Section 8 (Grounds 12? or perhaps 13?) for a ‘persistent’ smoker who may be in a long fixed term for example where Section 21 isn’t possible. I’m guessing it’s slim?
a) I think these would probably be unfair. The landlord’s remedy is to deduct money for damage done by smoking from the deposit. If he has a ‘fine’ too then this is double recovery.
b) It depends. If the property is an HMO where the license forbids smoking and the tenant is a persistent smoker I think the landlord should have a good chance – at least of getting a suspended possession order. They may also be in with a chance if the tenant is smoking in shared areas – as this is illegal.
However I think chances are slim for eviciton in respect of the property they have ‘exclusive occupation’ of – unless the smoking is causing real damage, or perhaps if they are a fire hazard, eg by smoking in bed. Particularly if there has been a fire and the landlord is worried it will happen again. Indeed the landlord could be required by his insurers to get rid of the tenant if they are a fire hazard.
In respect of A, I quite agree but for different reasons.
A “fine” or “penalty clause” for breaching a term is rarely a legitimate addition to a contract (Cavendish v Makdessi). What is acceptable is for a contract to make an honest and fair assessment of the actual damage done by the breach in advance of the breach occurring – e.g. a landlord could insert a clause saying that new keys will cost (say) £25 because that is a reasonable estimate of the costs involved in getting a new key cut. A clause saying that new keys will cost (say) £250 would not be enforceable as grossly excessive.
Smoking a single cigarette can hardly be said to do any damage whatsoever – a single cigarette won’t do even £1 of damage to the landlord. It’s the cumulative effect of smoking which produces actionable damage – so it is that which any legal action, deposit claim or estimated damage clause would need to target.
I would disagree with “Smoking a single cigarette can hardly be said to do any damage whatsoever “.
A singe cigarette can cause carpets and curtains to smell and need cleaning.
“The Direct Line survey gives the percentage of tenants who smoke inside the property as 21% which is quite high.. Obviously at least one in five tenants smoke.”
That is not what the survey said (according to your blog on the survey).
The survey said “one in 7 tenants breach terms” (paraphrased), then goes on to list the 10 most common breaches with percentages.
1 in 7 is approximately 14% of tenants.
As 21% is quoted for smoking, that must mean 21% of those that breach.
Therefore the proportion of all tenants that smoke in the property, according to the survey, is of the order of 3% (and similarly for the others in the top 10).
“Deductions from your deposit” – you never get your full deposit back, so why all this noise. You smoke in your room, they took half your deposit for repainting. Simple as that.