PDA

View Full Version : 'No smoking' clause in Letting Agreements- enforcement



Donna
28-03-2008, 08:17 AM
I refer to my post Moved in - immediately dragging feet on rent.
It's around page 7 somewhere dated 17 March.
Maybe be better to read that first before replying to this question, as this is an update.

Have couple: The rent did eventually arrive in my account when she said it would.
We are actively responding to his constant complaints about the shower. We are just awaitng for a part, which is out of our control.
They are lodgers. We have deposit etc. but nothing in writing at the mo.

Whilst she was away on holiday, me and my husband, sat him down to address some 'issues'. This was not meant to gang up on him in any way. Me and my husband needed to have a little chat with him regarding the deterioration in the relationship between him and my husband (caused by his constant complaining).

It was also because I smelled, smoking coming from the room, but of the type which gets you stoned basically. Being discreet I did not accuse him outright but in a 'and by the way you know there is no smoking in the house'. Type way.

Going back to when they moved in, they did say they were non-smokers.

Does non-smoking mean 'gange' as well?

I've been in their room when it is empty and have found evidence of smoking (a pack of cigarettes in the bin) The smell of the 'very herbal kind' lingering in the room. Also some tobacco which you use with roll ups. I could not find any other equipment associated with making joints, just the tobacco that one would mix the herb in with.

She is due back off holiday tomorrow where we've agreed we will all sit down together to go over everything. I was going to give them their contract (which has all that stuff about keeping clean and non smoking). But I'm not sure now.

So the dilemma is do I still give them the contract or shall I just give them a list of Do's and Dont's? As they are lodgers, I want to monitor the situation and not get tied in. I want to be in a position whereas, I'll give them another month - then if relations do not improve with him and my husband. Continued smoking of spliffs, we can then just get rid of them.

I am also worried because those kind of cigarettes are illegal.
I live with my husband and 2 children and our aupair.

My aupair was out late last night and he had chained the door and she could not get in. I did not even hear her myself. He (lodgef) came down and let her in. She said he looked so stoned it was almost funny (but not if you know what I mean)

What is the best way to broach this delicate subject with him and her when she gets back from holiday Friday? Today! I've lost track of time! I hope this is not due to passive smoking and my brain cells are going.

swinefever
28-03-2008, 17:11 PM
It doesn't matter what they are smoking...smoking is smoking; just tell them you don't want them doing it in the house. It's your house and they're just lodgers.

If you do want to give them a chance, a contract would be a good idea in this case because it will contain your list of Do's and Dont's. If you're worried about wanting proof, just fit a smoke alarm. To be honest, i'm not sure why you don't just give them the boot, or at least a written warning.

Donna
29-03-2008, 11:58 AM
Excellent about fitting a smoke alarm in their room. We have them all over the house and one is located in the landing outside their room, but it's not sensitive enough in it's location.

Also can you get one's that cannot be tampered with. Also ones that only pick up Cigarette smoke.

Things like a little incence stick I don't mind. Or a little tea light.

Could they make a big thing about me entering the room whilst they were out as well.

D x

swinefever
29-03-2008, 12:45 PM
To be honest, i'm not sure if you can get smoke alarms that only pick up cigarette smoke but you can get 10 year sealed units, such as this one:

http://www.safelincs.co.uk/product.php?xProd=238&xSec=124&jssCart=7a4f454a8d81123f210d30e2f98cd847

Which means the lodgers won't be able to open them and if they do, you know they're up to no good. Consult with them and tell them that you're going to fit a smoke alarm because it's a requirement of your insurance and it'll be tested once a week/month. That way you can keep an eye on what's going on in their room at the same time.

If you don't mention that you've been in their room, how would they know? Another suggestion is to say you know they've been smoking because you've had friends round (who smoke) and they've commented on the smell.

Finally, if they're reasonable, just say that you don't mind them smoking it outside the house but you don't want your family (particularly your children) exposed to it.

non-smoker
23-10-2008, 21:32 PM
I seek your advice in regard to me as a tenant. I am a student in a 5 bed student house, I signed the agreement in september after 1 viewing as i NEEDED somewhere to live when moving to university. I am 26year old male and living with four 20 year old girls who all smoke tabaco and marajauna in the house, although it is a non-smoking house as stated in the agreement. I have asked them to use the garden but they dont and the house stinks, it ios also a health prob as i am a rugby player and it is affecting my breathing. Also two of the girls also have boyfriends almost permanantly living in the house. i really hate it here and want to move out. I recently went to the letting agent and asked if they could do something about the smoking as it is really annoying me, but she said she couldn't stop them and i should just ask them to not smoke when i am there! to me this is not good enough. My real aim is to move out as i really dispise it here!
So my question is, "do you see a way of me breaking contract legally? and thereore able to move from the property?"

mind the gap
23-10-2008, 21:39 PM
I seek your advice in regard to me as a tenant. I am a student in a 5 bed student house, I signed the agreement in september after 1 viewing as i NEEDED somewhere to live when moving to university. I am 26year old male and living with four 20 year old girls who all smoke tabaco and marajauna in the house, although it is a non-smoking house as stated in the agreement. I have asked them to use the garden but they dont and the house stinks, it ios also a health prob as i am a rugby player and it is affecting my breathing. Also two of the girls also have boyfriends almost permanantly living in the house. i really hate it here and want to move out. I recently went to the letting agent and asked if they could do something about the smoking as it is really annoying me, but she said she couldn't stop them and i should just ask them to not smoke when i am there! to me this is not good enough. My real aim is to move out as i really dispise it here!
So my question is, "do you see a way of me breaking contract legally? and thereore able to move from the property?"

Is your tenancy agreement a joint AST, or do you all have separate ones?

johnboy
23-10-2008, 22:14 PM
You could tell the agent that unless he does something about it or release you from the contract you will demand the l/l address as your legal right and inform him that the agent is not looking after his property which is maybe being trashed.

agent46
23-10-2008, 22:15 PM
. I am 26year old male and living with four 20 year old girls

....and the problem is?

Seriously though, if it is a joint tenancy, then unless the landlord/letting agent enforce the "no smoking" terms, you are pretty much stuck with it for the duration unless you can persuade the letting agent/landlord to release you from your tenancy, though they will probably only allow this if you find another tenant (who the girls would doubtless also need to meet and/or vet). The LL/LA would (if they are competent) probably want to reference the tenant, and then grant a new tenancy to the new person + the 4 girls. They would probably charge you the admin fees associated with this.

mind the gap
23-10-2008, 23:10 PM
....and the problem is?

Seriously though, if it is a joint tenancy, then unless the landlord/letting agent enforce the "no smoking" terms, you are pretty much stuck with it for the duration unless you can persuade the letting agent/landlord to release you from your tenancy, though they will probably only allow this if you find another tenant (who the girls would doubtless also need to meet and/or vet). The LL/LA would (if they are competent) probably want to reference the tenant, and then grant a new tenancy to the new person + the 4 girls. They would probably charge you the admin fees associated with this.

I was just thinking...if OP is the fifth tenant named on the TA, and therefore not pursuable for debts (the first four would be, but not him), couldn't he just leave on the grounds that their behaviour had made life unbearable for him? If they didn't like paying his share of the rent and bills they could find another Fag Ash Lil to join them.

Morally he has a strong case; perhaps not, legally?

agent46
24-10-2008, 01:11 AM
I was just thinking...if OP is the fifth tenant named on the TA, and therefore not pursuable for debts (the first four would be, but not him), ?

If that is the case, although he would only have an equitable interest rather than a legal estate, he is still contractually liable for the performance of the obligations under the tenancy agreement.

mind the gap
24-10-2008, 08:18 AM
If that is the case, although he would only have an equitable interest rather than a legal estate, he is still contractually liable for the performance of the obligations under the tenancy agreement.

Doh!

So it sounds as if he'll have to negotiate with them (about his moving out and finding a replacement), although might not be as difficult as he anticipates. Presumably they would rather have someone else living there (another smoking friend, perhaps) than someone who is forever asking them not to smoke when they have no intention of complying.

This is the eternal problem, isn't it, of signing up for a house on a joint AST with strangers. If they turn out to be slobs, you cannot fall back on your friendship to exert any pressure on them to change their behaviour.

Good luck, non-smoker.

Worldlife
25-10-2008, 04:38 AM
It is my view that other posters have not given sufficient importance to the breach of contract issues here and the costs involved to the original poster in trying to resolve this situation.

It may be worthwhile seeking input from ASH (Action on Smoking and Health) on this matter.

I could not see any answer to this problem on their website

Action on Smoking and Health (http://http://www.ash.org.uk/ash_se3ugihc.htm)

Maybe worthwhile summarising the facts and sending them by email to:-

enquiries@ash.org.uk

mind the gap
25-10-2008, 07:19 AM
It is my view that other posters have not given sufficient importance to the breach of contract issues here and the costs involved to the original poster in trying to resolve this situation.

It may be worthwhile seeking input from ASH (Action on Smoking and Health) on this matter.

I could not see any answer to this problem on their website

Action on Smoking and Health (http://http://www.ash.org.uk/ash_se3ugihc.htm)

Maybe worthwhile summarising the facts and sending them by email to:-

enquiries@ash.org.uk

Good point, although I'm not any mechanism exists by which the LL can be legally required to enforce a non-smoking rule in a private property with a joint AST. There was even some debate on this forum earlier this year about whether there is any point including a no-smoking clause in a TA, for that very reason. I thin the conclusion reached was that it would be unenforceable and it could only work by joint agreement and self-regulation on the part of the tenants. A test case would be really useful, wouldn't it?

I suppose one of the assumptions of a joint AST is that the tenants are functioning as one household in some ways... which pre-supposes that they know each other and can agree on important issues. (It would be naive to think this always happens in practice, of course, as the rows and sulks which break out in student houses demonstrate).

I think we are still a long way from the time when smoking in private homes will be regarded with universal disgust (more's the pity!).

However...on re-reading OP, I wonder whether the fact that the girls are smoking pot (a banned substance), as well as cigarettes, might be a way for non-smoker to force LL either to let him leave without penalty, or to take action against the girls? Presumably the TA includes a clause prohibiting illegal activity on the premises and although the police might not be very interested, it could be a bargaining tool. This house is presumably an HMO and LL could in theory lose his licence if he allows illegal activity. I would use this a lever.

julie798
27-10-2008, 10:10 AM
I would of thought that, between the 4 of them, they will know a girl who would want to move in with them, and if you give them enough grief, they will be glad to see the back of you, it would save the agent looking for someone if you ask them, mention the pot smoking and see if that will be enough for a new agreement without costs to you.

When I read this forum, i often wonder what could be going on in my property, but think its better not to know Lol, well until its time for them to go :eek:

jeffrey
27-10-2008, 10:31 AM
Malevolent suggestion: tell Police that this house is used as drug den?

lavy
22-01-2009, 07:40 AM
Hi,
In my tenancy agreement one of the clauses states not to smoke or alow smoking on the property. My tenants clearly are smoking all the time. I have reminded them about this but they continue. Can I make a deduction for redecorating and cleaning from the deposit when they leave as everything is being discoloured and stinks of smoke. Is it reasonable to do this .They did say they were non smokers at the start of there tenancy which is now obviously not true . Has anyone had a situation like this and what did you do Lavy

mind the gap
22-01-2009, 07:54 AM
Hi,
In my tenancy agreement one of the clauses states not to smoke or alow smoking on the property. My tenants clearly are smoking all the time. I have reminded them about this but they continue. Can I make a deduction for redecorating and cleaning from the deposit when they leave as everything is being discoloured and stinks of smoke. Is it reasonable to do this .They did say they were non smokers at the start of there tenancy which is now obviously not true . Has anyone had a situation like this and what did you do Lavy

I have had this situation and I told the tenant concerned either to stop smoking inside the property, or to move out. However, he was one of six tenants; the other five supported me and he knew they would gladly 'grass him up' if he lapsed. So he just smoked in the garden - and left about a million tab ends to be cleared up (and charged for) at the move-out.

It's more difficult if the whole lot are doing it - ratbags - and if they have no consicence. It has been suggested on this forum that unless your 'no-smoking' clause has been negotiated and included in your TA separately as a special term/condition, then it is legally unenforceable. In other words, you could not evict them for breaking the rule, barmy as that may seem.

If you cannot, or don't want to evict them, I think all you can do (apart from appealing to their sense of decency, which is probably a non-starter) is grit your teeth and get in there after they leave to fumigate, re-decorate and deep- clean carpets and all furniture especially sofas and curtains. You must certainly charge this to them. They would certainly not be getting a penny of their deposit back from me if I could avoid it, as in my experience it takes up to a month for a smoked-in house to be bearable for non-smokers, even once it's been cleaned and aired thoroughly. I would hope you could claim the lost rent (for any resulting void) from them, but I don't know. Logically, if the clause itself is unenforceable, then losses arising from their non-compliance with it (ie from the house stinking for weeks) would probably not be recoverable. But it would be reasonable to charge for restoring the house fully to its state of cleanliness and pleasantness when they moved in, for which you will presumably have evidence in the inventory?

I always think it would be good to have a olfactory record of what a property is like as well as just verbal (written) and visual (photos/video) proof. A kind of scratch'n'sniff snapshot of each room on Day One and again on End Day? Some student bedrooms would be interesting at the check out! Just catch a whiff of this, Your Honour...

You will obviously wanting to be getting them out as soon as legally possible.

If I were Prime Minister...

jeffrey
22-01-2009, 10:42 AM
Hi,
In my tenancy agreement one of the clauses states not to smoke or alow smoking on the property. My tenants clearly are smoking all the time. I have reminded them about this but they continue. Can I make a deduction for redecorating and cleaning from the deposit when they leave as everything is being discoloured and stinks of smoke. Is it reasonable to do this .They did say they were non smokers at the start of there tenancy which is now obviously not true . Has anyone had a situation like this and what did you do Lavy
You could simply serve a s.8 Notice on [discretionary] grounds 12/13/15, as applicable, if you want to show that you mean business!

mind the gap
22-01-2009, 11:06 AM
You could simply serve a s.8 Notice on [discretionary] grounds 12/13/15, as applicable, if you want to show that you mean business!

How can you 'mean business' if the standard 'no-smoking' clause has no teeth and wouldn't - according to the great Paul f - stand up in court? If Ts knew it wouldn't stand up, and called your bluff, you'd just end up poorer and looking a bit silly. I would love to see courts allow Ls throw tenants with antisocial habits out, followed by all the detritus of their vile habits, but I suspect the 'yuman rights' argument would win in the end.

However, although it is tangential, why should a separately negotiated 'special term' bolted on to a normal TA, carry more weight, legally, in an TA, than any other? Surely the principle underlying such an agreement is that the T signs to say s/he understands and agrees to all its clauses? Otherwise what's the point of any of them, other than the ones enforceable by statute?

Your illumination would be welcome. (But make sure you don't wear one of those nasty frilly light-shades).

jeffrey
22-01-2009, 11:10 AM
1. All AST terms are legally-binding on T, unless a Court holds otherwise in reliance on the Unfair Terms etc. Regs.
2. AST terms individually agreed by L and T cannot be subjected to the Regs. at all.

mind the gap
22-01-2009, 11:26 AM
1. All AST terms are legally-binding on T, unless a Court holds otherwise in reliance on the Unfair Terms etc. Regs.
2. AST terms individually agreed by L and T cannot be subjected to the Regs. at all.

But in previous answers, you have, I think, poured scorn on The Unfair Terms Regs (by which I take it you're referring to the OFT guidelines? If not, apologies), suggesting (correct me if I am wrong) that they are too vague/badly drafted to be enforceable - or not a valid recourse for Ls with only one or two properties? I seem to recall there was some reason why both you and Lawcruncher said they were practically useless.

Are you saying that AST terms individually agreed by L and T cannot be enforced at all, (in which case, what's the point of including them?), or merely that they cannot be enforced with reference to 'the Regs' (Unfair Terms regs?)

Can they be legally enforced any other way, to evict a smoking tenant who originally agreed not to smoke - or not?

jeffrey
22-01-2009, 11:47 AM
But in previous answers, you have, I think, poured scorn on The Unfair Terms Regs (by which I take it you're referring to the OFT guidelines? If not, apologies), suggesting (correct me if I am wrong) that they are too vague/badly drafted to be enforceable - or not a valid recourse for Ls with only one or two properties? I seem to recall there was some reason why both you and Lawcruncher said they were practically useless.

Are you saying that AST terms individually agreed by L and T cannot be enforced at all, (in which case, what's the point of including them?), or merely that they cannot be enforced with reference to 'the Regs' (Unfair Terms regs?)

Can they be legally enforced any other way, to evict a smoking tenant who originally agreed not to smoke - or not?
You misunderstand.
1. The Regs. are law, by an SI.
2. The OFT guidelines are not law.
3. Terms negotiated individually are:
a. enforceable; and
b. NOT covered by the Regs. at all.
4. Terms not negotiated individually are covered by the Regs. Some believe that the guidelines also have legal effect in this case; they don't.

mind the gap
22-01-2009, 11:50 AM
You misunderstand.
1. The Regs. are law, by an SI.
2. The OFT guidelines are not law.
3. Terms negotiated individually are:
a. enforceable; and
b. NOT covered by the Regs. at all.
4. Terms not negotiated individually are covered by the Regs. Some people believe that the OFT guidelines also have legal effect in this case; they don't.

Thank you for clearing that up. A final question :
3. a. How?

jeffrey
22-01-2009, 11:53 AM
Thank you for clearing that up. A final question :
3. a. How?
Proceedings- either injunction, or following a s.8 Notice under g12/14/15 as appropriate.

lavy
22-01-2009, 12:00 PM
what about claiming for the smoke damage when they leave re decorating cleaning etc is this allowed or do fumean (human) rights overpower this .There is also the increased fire risk .One of the questions my insurance company asks is if the tenants are smokers They told me they were not so that is what i told my insurance company . Can I legaly end the tenancy on these grounds and can i claim for a re decoration and cleaning from there deposit .It is in the dps scheme so they may have to decide if this is allowable . It does state no smoking in the teancy agreement. Some tenants do not appear to see that smoking damages the decor in a property and that they beleive it is their right to do so (fair wear and tear clause) but if it is stated in the tenancy agreement surely it is enforable if not then what is the point of an ast with this in ???.

moleskin
25-04-2009, 14:08 PM
Hello all
Firstly this is my first post,so if its in the wrong place I appologise.

1. We are new landlords, and have just had tennants vacate after three years. The problem is this: the tennant assured us he would smoke outside the property. On veiwing the property last week we were horrified to see the smoke damage in our kitchen dining area.We have asked our tennants to contribute towards the decorating.,they have refused,as we have not yet returned the deposit(estste agent holds it) our agents have informed us that the tennants are going to litagation to recover the deposit.
2. It states in the contract "The tennant agrees not to smoke in the property" to which he has signed. We did verbly agree he could smoke outside the property, but he has been smoking inside the property

Any help/advice would be great. Moleskin

PaulF
25-04-2009, 16:51 PM
You can't prevent a tenant from smoking without his prior agreement, but the clause you mention appears to state that he has agreed to comply with this.

I have always felt that nicotine stains are damage to the fabric of the premises, and cleaning of paintwork, carpets and curtains will all be necessary to remove the disgusting smell that it often left behind.

This should be your defence if the matter goes to court; it depends on how the deposit is held (landlord's agent or stakeholder) as to how you deal with it - of the former then you can instruct the agent to return the whole deposit to you, but if the latter then you and the tenant jointly have to agree to any disputed amount before it can be allocated. The undisputed amount should go to the tenant asap.

Paragon
25-04-2009, 17:57 PM
Smoke stains, whether thru ciggies or candles or indoor bbq, is not really fair wear and an attempt may be made to deduct from deposit as redecorating costs. Be prepared to show visual proof of the damage if challenged.

Lawcruncher
27-04-2009, 00:39 AM
Does a landlord looking to recover the cost of redecorating not have to overcome section 18 (1) of the Landlord and Tenant Act 1927:

Damages for a breach of a covenant or agreement to keep or put premises in repair during the currency of a lease, or to leave or put premises in repair at the termination of a lease, whether such covenant or agreement is expressed or implied, and whether general or specific, shall in no case exceed the amount (if any) by which the value of the reversion (whether immediate or not) in the premises is diminished owing to the breach of such covenant or agreement as aforesaid [...]

moleskin
28-04-2009, 18:09 PM
Hi all
Thanks to everyone who responded to my last question, regarding our smoking tenants. I had briefly spoken to our agent regarding our deposit and suggested that the tenants make a contribution towards the repainting. I suggested that even if they paid £200 towards the £700 quote we received that would help.The agent informed me that my tenants are disputing the £200 and has returned the rest of the deposit (to our horror), the disputed amount was only a passing comment during a telephone conversation. Does our agent have the authority to return any deposit monies without written consent from us concerning any disputed/undisputed amounts. We feel that our agent has acted unprofessionally regarding certain aspects of the letting process. Any comments would be much appreciated.

Paragon
29-04-2009, 10:39 AM
You will have to up the ante - tell the tenants you will claim in court for the full £700 unless they want to settle for a smaller amount now. The only thing that really changes is the procedure and a little bit more cost, which you would include on your claim. (own opinion) Have you had an independent agent do the check/out condition/inventory report? Can you substantiate your claim with visual proof?

I would certainly have an issue with the agents, unless for some reason they thought you weren't asking for damages.

mind the gap
29-04-2009, 15:30 PM
I would certainly have an issue with the agents, unless for some reason they thought you weren't asking for damages.

It still smacks of incompetence to return a deposit without double-checking with LL first. Also, if agents conducted check-out they should have noted that house stunk of smoke and that decoration was discoloured, etc.

Lawcruncher's point about not demanding 'betterment' (if I have understood it correctly) is an interesting one, although if the only practical way of restoring the paintwork in the house to it start-of-tenancy condition is by completely redecorating (you cannot semi-decorate, can you), does that not suggest OP would have a good case for suing for at least half the cost? Given that the decor would by 'fair wear and tear' have deteriorated to some extent in that time period anyway, perhaps that would be a fair compromise.

Lawcruncher
30-04-2009, 08:36 AM
Lawcruncher's point about not demanding 'betterment' etc.

The Act is not so much a question of not being able to demand betterment, but of having to show that the value of the property has decreased because of some deterioration.

The question that needs to be asked in this case is: If the property is not redecorated would the rent obtainable be less than if it were redecorated? If the answer is "no", then there can be no claim for damages as there has been no loss.

This question is not the same as asking if the number of people willing to take the property has been reduced, so long as the number has not been reduced to such a low figure that the property is only lettable by reducing the rent.

mind the gap
30-04-2009, 08:55 AM
The Act is not so much a question of not being able to demand betterment, but of having to show that the value of the property has decreased because of some deterioration.

The question that needs to be asked in this case is: If the property is not redecorated would the rent obtainable be less than if it were redecorated? If the answer is "no", then there can be no claim for damages as there has been no loss.

This question is not the same as asking if the number of people willing to take the property has been reduced, so long as the number has not been reduced to such a low figure that the property is only lettable by reducing the rent.
Sorry; yes, I see what you mean. In practice, it is probably the same thing (house being less desirable and therefore less able to command the same rent, or sell for the same price, as before). It stands to reason that a house with yellowing and/or tobacco-smelling decor and furnishings will probably be seen as less attractive to most prospective renters than a similar-sized house which is not yellowing and malodorous.

What kind/level of proof would a court need, though? How do you prove what your house could have rented for undecorated, as compared with newly-decorated?

Bel
03-10-2009, 10:35 AM
Has any super efficient person got a good written no smoking policy that works for them in shared room HMO situation?

Eg; first offence..verbal warning, second offence..stiff letter

????

mind the gap
11-10-2009, 13:24 PM
Have a clause in the TA which state, under the section headed 'The Tenant agrees...' which says

'not to smoke in the property or allow any visitors to smoke in the property or in the entrances to the property or out of the windows to the property nor to allow any visitors to smoke anywhere in the property, etc. '.

You may also want to make it clear that if T's smoking has made the room(s) smell, he will be liable for the cost of cleaning carpets and soft furnishings including curtains.

If they are in breach of this very clear prohibition, they get a written warning. If they re-offend, they can be served a section 8 ground 14 (non-rent breaches of TA), but it would probably not be sufficient grounds to be granted a court order for possession.

I would be interested to hear if anyone has ever managed to get a T out who has repeatedly been in breach of a smoking ban.

I think that in the end, the safest means of avoiding the problem is to be Very Very Heavy about it when selecting your tenant. It is a rare smoker who will be willing not to smoke in their own home, or who will put up with standing around on a freezing cold pavement in winter to satisfy their craving. It is better to be certain you only let to non-smokers to begin with.

You might find this thread interesting:

http://www.landlordzone.co.uk/forums/showthread.php?t=19742&highlight=clasp

zip
21-10-2009, 13:07 PM
Can anyone help me please? I rent a house out and have had the same tenant for three years now. I have recently discovered that she has been smoking in the property and the walls and painted wood areas are very badly discoloured (not to mention the smell!!). The tenant does not want to renew the tenancy next year and I would like to sell the house. Do I have any chance because she has breached the agreement she signed stating no smoking allowed at the property, to take money from her deposit two months early when I am legally allowed to market the property and have the walls etc painted? I do feel she has devalued my house for marketing purposes and could be left with an empty house and having to pay the mortgage myself for longer than needs be because of the tenants actions.

mind the gap
21-10-2009, 14:04 PM
Have you taken issue with her at any point about her smoking in the property, or just let her do it for three years, then decided to object?

Either way, I would be very surprised if she would agree to your deducting from her deposit in order to re-decorate while she is still living there. Also, even if she did agree, it would mean releasing the whole deposit early, which would leave you with nothing to fall back on if there is more damage/cleaning to pay for when she finally moves out. Not a good idea.

Your property will be far more attractive to potential buyers (and far easier to show to them) when it is empty, redecorated and not smelling of her cigs and ash. So, my advice would be to factor in a short void period after she leaves (which I would guess you'd recoup by the value you're able to add to the property by doing as advised above).

Incidentally, what you are proposing to do is not (or should not be) 'betterment'. That means improving the property so it is better than wehn she moved in. If you want to do that you must pay for it yourself. I agree that you should be able to decorate over her smoke-damage, but you cannot charge her for improvements.

zip
21-10-2009, 14:28 PM
Thank you Mind the Gap for your advise. No I did not realise she smoked until recently. I did get the agents in to do a check and the confirmed it was bad and wrote to her regarding this. I don't suppose she will stop as the law seems to nearly always be in favour of the tenant.

mind the gap
21-10-2009, 14:47 PM
It is not that the law always favours the tenant, (although it would be hard to enforce a ban, I agree) - just that I am surprised you have not given her her marching orders before now - I refused to renew the contract of a tenant who ignored the no-smoking policy in one of our rented houses.

In future, just try to make sure you do not let to a smoker to begin with:

http://www.landlordzone.co.uk/forums/showthread.php?t=19742&highlight=clasp

westminster
21-10-2009, 15:30 PM
Although the smoke staining may not count as fair wear and tear, you would expect fairly significant wear and tear to the decor after three years regardless (and white paintwork tends to discolour over time of its own accord) possibly to the extent of having to redecorate before the next tenancy. Almost impossible to separate the two issues - so I doubt an adjudicator or court would accept that the T is liable to pay for the property to be redecorated, certainly no more than a small percentage of the cost.


I am legally allowed to market the property and have the walls etc painted
Whatever it says in the TA, you would still need the tenant's consent to access the property to redecorate (and to conduct viewings).

zip
21-10-2009, 16:38 PM
Hi Westminster, I can except fair wear and tear over a period of three years, but surely if the LL has had an independant check on the property and a confirmation of heavy smoking, how can this be deemed as fair wear and tear? surely, it is classed as damage to the property. I am amazed that the tenancy agreement states the tenant should look after the property and report any maintenance faults,to which the LL has to deal with toute suite, otherwise he/she is in breach of the contract!! As to the tenant breaching the contract (in this case smoking) and causing damage to walls and paintwork this obviously is acceptable.

westminster
21-10-2009, 17:47 PM
Hi Westminster, I can accept fair wear and tear over a period of three years, but surely if the LL has had an independant check on the property and a confirmation of heavy smoking, how can this be deemed as fair wear and tear?

I didn't say the smoke staining was fair wear and tear. Smoke staining and wear and tear are two separate issues.

My point is that even if the T had not smoked, there would have been fairly significant wear and tear to the decor after three years, quite possibly enough to require redecoration (in my experience, even 'good' tenants can cause a lot of scrapes/marks/etc to paintwork, and as I said, white paintwork yellows over time). Therefore, it would be difficult to argue /prove that you've suffered any significant loss as a result of the breach.

Having said that, if the staining was so severe as to require washing all the paintwork before repainting, then you might be able to claim for this cleaning work on the basis it was required due to the breach. Sad S also has a point (though not all walls are lined with paper) but if the T disputed it you'd need to convince a judge that such extreme measures were truly necessary to remedy the damage, and that there wasn't a cheaper solution. The worst smoke staining I've encountered was when I rented a room in my early 20s from an old lady who smoked heavily - the walls were a deep yellow throughout from decades of smoking. I was her first ever lodger, so I washed the walls/woodwork of my room with sugar soap and repainted them, and that was enough to sort it out.

Snorkerz
21-10-2009, 21:34 PM
Zip - how often would you expect to re-decorate?(A years) How long since it was last decorated? (B years) How much will redecoration cost? (C pounds)

I think this is a fair way of working out how much to charge from the deposit - though others may disagree...

(C/A) x (A-B)

My own personal A would be 5 years for decorating.

And just to emphasise MTGs point, unless the T actually agrees, you, your agents or your prospective tenants have no right to enter the property. Even if the AST says something different!

zip
22-10-2009, 11:44 AM
Hi Snorkerz, thanks for reply. The house was professionally decorated 4 yrs ago. Included new kitchen and bathroom. I agree with you regarding probably 5yrs for renew. This is why it has pi.... me off!! I expect wear and tear but heavy smoking is just unexceptable. If one bought say, a new shirt and took it home to try on then decided to return it for a complete refund and the store said it stunk of B.O. they could refuse to pay you. If a T signs a contract to say no smoking and they do, the wear and tear factor should not even come into consideration at the end of the tenancy. I really don't see the point of a lot of the clauses put on these agreements, as you can't enforce half of them.

westminster
22-10-2009, 12:49 PM
Hi Snorkerz, thanks for reply. The house was professionally decorated 4 yrs ago. Included new kitchen and bathroom. I agree with you regarding probably 5yrs for renew.
And you say you're planning to sell the house next year, so by then you will have had maybe 4 and a half years of 'use' out of the decor?

Meaning your 'loss' would be 10% of the cost of redecoration, not 100% (using Snorkerz's formula).

Same principle would apply if, say, tenant had ruined an 8 year old fitted carpet - T only liable for a small percentage of replacement cost, LL never entitled to betterment.


If one bought say, a new shirt and took it home to try on then decided to return it for a complete refund and the store said it stunk of B.O. they could refuse to pay you.
Yes but the decor isn't new. It's the equivalent of an old shirt, faded and threadbare, nearly due to be thrown out, and you're expecting the tenant to buy you a new one because T spilt red wine all over it.

zip
22-10-2009, 13:42 PM
Hi Westminster, my argument is not how many times a property should be decorated. It's about breaking a contract and paying for doing so.

westminster
22-10-2009, 14:02 PM
Hi Westminster, my argument is not how many times a property should be decorated. It's about breaking a contract and paying for doing so.

It doesn't work like that. T is only liable for the LL's actual loss as a consequence of the breach. In this case, as previously explained, your loss is probably no more than 10% of the cost of redecoration.

If T had kept a goldfish in breach of a "no pets" term but the goldfish had not caused any damage to the property, you couldn't charge T just for breaching the contract.

Snorkerz
25-10-2009, 22:18 PM
Zip - if you took this to court, you would have to prove the cost of the tenant breaking the contract - ie, what in £ and p it had cost you.

You can not expect the tenant to pay for a new set of decoration to replace a 4 year old set. After all, if you had let to a family then the decoration would be lucky to last 3 years!

Unless the decoration was very expensive (hand-printed wallpaper?) or extensive (10 bedrooms!) then I might think the monetary value isn't worth the hassle. You don't mention any other 'problems' with the tenant, so I really would be inclined to let it go.

Remember, when T does leave, you could probably deduct from her deposit to cover a professional carpet clean and to get a company in to 'spring clean' the place - I saw a company (admittedly N.American) on TV that cleaned crime scenes and claimed to be able to get rid of the stench of putrid flesh!

zip
17-11-2009, 16:35 PM
Hi Snorkerz, thanks for reply and sorry I have not replied. My computer went into hospital for a major op!!! I live in a house with an open fire and this has not damaged the paint work in the last 4 yrs anything like the nicotine my T has deposited in the house. Do we have to accept that T's are different to people that own their houses? I don't expect them to look after a property the same way, but I would expect the law to be on the side of the L when a breach of contract has been broken. I have had the agents do a check and they also agree that the T has been smoking quite heavily in the property ( this has been documented). I will be fighting my corner on this when the end of the tenancy comes. I would expect normal wear & tear over this period, like skuffing of walls etc, but not having to re paint ceilings and bathrooms. If a T breaches the contract by painting the walls without the L's permission, is this classed as damage? If it is, what is the difference to staining the paintwork with yellow nicotine?

HairyLandlord
17-11-2009, 16:55 PM
you would expect fairly significant wear and tear to the decor after three years regardless (and white paintwork tends to discolour over time of its own accord).

Not always true and I disagree that we have to "expect" significant wear and tear and/or deterioration to the decoration simply because of the passage of time.

I would suggest that this will depend a lot on what type of tenants you have and the position your property is in, relative to the sun.

If you have mainly students or young-ish people, you can expect that their mostly immature behaviour will result in stains on walls, skirting and doors, etc. as well as small bits of damage here and there, not to mention carpets stains from the ubiquitous drunken, rowdy parties, as well as spills from cups of tea, etc.

However, if you have a bunch of decent, responsible adults/a family, who have the ability to control themselves in the way a lot of students can't or won't, and who also look after the property, you may not need to redecorate at all until after 5/6 years, or more.

Furthermore, even with while/light coloured decor (as I have with several properties), fading or loss of lustre will depend on how much natural light the decor is subjected to aswell as the quality of the paint you apply, how many coats and the quality of the craftsman's work.

This is my experience.

IanM
17-11-2009, 17:32 PM
not to mention the smell!!Have a similar issue to you, albeit less serious. I've had the professional cleaners out today and they deployed an ozone generator as it is supposed to be one of the most effective methods of mitigating tobacco odours. First impressions are good, and I will report back properly on my own thread about this in a few days - when I've had a chance to judge the effectiveness after the cleaning smells disperse and the place has had a chance to air out a bit. My thread is here: http://www.landlordzone.co.uk/forums/showthread.php?t=23900 The ozone generator is treatment is relatively inexpensive, and even though it's early for me to say it does seem to be money well spent.

Do not attempt to use an ionizer - it's a different device and will just make the dirty particles stick to all the walls and fabrics. Ozone will oxidise the the unwanted particles to neutralise them, at least that's what it says here: http://www.air-zone.com/removesmoke.html The site linked also recommends a using HEPA filter air purifier, which you may want to investigate further. Lastly I was warned that ozone is an irritant, and can be toxic in high doses, so you'll need the place to be unoccupied for a day or two while the generator is being used.

westminster
17-11-2009, 18:18 PM
Furthermore, even with while/light coloured decor (as I have with several properties), fading or loss of lustre will depend on how much natural light the decor is subjected to aswell as the quality of the paint you apply, how many coats and the quality of the craftsman's work.

This is my experience.

So is it sunlight or lack of it which causes yellowing of white-painted woodwork? Is Dulux sufficiently good quality or should I be using a different brand? I've not noticed any deterioration with wall emulsion but definitely with white eggshell/gloss on woodwork several times.

chappers2341
17-11-2009, 18:30 PM
If the nicotine staining is serious I would think you would have a fair shout to withold money to either clean or re-paint.
Is the staining so obvious that when pictures are moved that clean patches are left.

Some people have said that the decor is coming to the end of it's life anyway as it is over 3 years old. say you let a house that hadn't been decorated for 10 years and I threw a bucket of mud up one of the walls, would you accept my argument that it needed decorating anyway.

Whilst minor breaches in a tenancy agreement are themselves not grounds for eviction or withholding deposit, breaches that cause damage are chargeable and personally I would be pursue this if the staining is significant and you can prove the state of the property before you let it.

zip
18-11-2009, 13:23 PM
Hi Chappers2341, If you threw mud on a wall that needed painting, I would ask you for the cost of cleaning the wall before it was re-painted. If the mud had stained the wall then I would see no reason why you shouldn't also pay for the paint as your mud slinging fit was not an accident. The same as my T's nicotine staining is also not accidental. You know, I could forgive the odd accident or two,as we all have them, but not smoking in someone elses house when they have asked you not to and you have agreed!! The T's that do so should pay for their actions. If a T paints the walls a different colour without the L's permission is this regarded as damage? Should the T pick up the bill for re painting?

mind the gap
18-11-2009, 13:31 PM
Hi Chappers2341, If you threw mud on a wall that needed painting, I would ask you for the cost of cleaning the wall before it was re-painted. If the mud had stained the wall then I would see no reason why you shouldn't also pay for the paint as your mud slinging fit was not an accident. The same as my T's nicotine staining is also not accidental. You know, I could forgive the odd accident or two,as we all have them, but not smoking in someone elses house when they have asked you not to and you have agreed!! The T's that do so should pay for their actions. If a T paints the walls a different colour without the L's permission is this regarded as damage? Should the T pick up the bill for re painting?

To expect T to pay for the repainting of a wall which needed painting anyway (regardless of whether T had stained it or not), would be 'betterment' and it is not allowed (See westminster's 'old shirt' analogy, which seems apposite). It would indeed be reasonable to expect a mud-slinging T to pay for cost of removing mud, but not for the paint, unless of course, the mud had stained the wall to the point that new emulsion were insufficient to cover it and it needed a more specialased treatment e.g. stain-seal.

I think the principle of who should pay for what has now been clarified, has it not?

ah84
18-11-2009, 13:50 PM
Not always true and I disagree that we have to "expect" significant wear and tear and/or deterioration to the decoration simply because of the passage of time.

I would suggest that this will depend a lot on what type of tenants you have and the position your property is in, relative to the sun.

If you have mainly students or young-ish people, you can expect that their mostly immature behaviour will result in stains on walls, skirting and doors, etc. as well as small bits of damage here and there, not to mention carpets stains from the ubiquitous drunken, rowdy parties, as well as spills from cups of tea, etc.

However, if you have a bunch of decent, responsible adults/a family, who have the ability to control themselves in the way a lot of students can't or won't, and who also look after the property, you may not need to redecorate at all until after 5/6 years, or more.

Furthermore, even with while/light coloured decor (as I have with several properties), fading or loss of lustre will depend on how much natural light the decor is subjected to aswell as the quality of the paint you apply, how many coats and the quality of the craftsman's work.

This is my experience.


I totally agree. I let bedsits in an HMO and do not expect to repaint after 3 years. A good tenant can mean getting around 8 years before painting. Yes the paint will not be as white as originally but it looks fine. However smoking is a different issue. A heavy smoker can totally ruin a room in a year. Carpets stink and need to be chucked and walls and woodwork are totally yellow. That is why I don't take smokers.

What the law allows is a different matter.

zip
18-11-2009, 13:52 PM
Hi Mind the Gap, sorry to go on about this but, If in a house the paint work is in very good condition apart from one room that has been smoked in constantly and has stained the walls which other wise would also be in good order, would the L be expected to pay for re- decorating?

mind the gap
18-11-2009, 13:54 PM
I don't let to smokers either, but find it is cost-effective (in terms of keeping the property at the high end of the student rental market) to re-emulsion walls and ceilings every year and re-gloss every three years.

mind the gap
18-11-2009, 13:56 PM
Hi Mind the Gap, sorry to go on about this but, If in a house the paint work is in very good condition apart from one room that has been smoked in constantly and has stained the walls which other wise would also be in good order, would the L be expected to pay for re- decorating?
No, I would say that if the other rooms in the house do not need decorating but the 'smoked-in' one does, then it is fairly easy to demonstrate that T's actions have damaged that room beyond what would be deemed 'fair wear and tear', thus T should pay.

The scenarios referred to earlier assumed that the whole place needed decorating anyway. As has been suggested, depending on the tenants you get and how long they have been in there, that might not be necessary.

IanM
18-11-2009, 14:06 PM
Re the ozone generators, I think the physics of it means that not all devices are equal, and the device must be appropriate to the room/building. There is some long info from the USA's Environmantel Protection Agency: http://www.epa.gov/iaq/pubs/ozonegen.html Ozone is effective in high enough doses, and is used to sterilize hospital operating rooms. But it can be dangerous (leads to respiritory problems) so consumer devices are often totally inadequate as they are safe doses which aren't sufficient to be effective. Commercial devices need to pump out enough ozone to permeate each room, and that would appear to mean sealing the room and wearing a mask - but obviously you need a contractor who properly understands how to use the generator effectively.

The one I saw yesterday was pumping a vapour stream maybe 2m long, and 30° angle from the unit. The room is roughly 6x3m and there did seem to be a faint mist permeating the whole room. The tobacco smell has been reduced significantly, more so since the windows have been open (note that the carpets were also cleaned so that may play a part) The curtains do still smell, and in retrospect the ozone generator wasn't big enough (my opinion) so probably ought to have been swapped to the opposite end of the room for half of the duration so that the curtains would get more effective treatment.

chappers2341
18-11-2009, 14:09 PM
By breaching the terms of the contract(all be it a minor breach)and smoking, it could be said that the tenant had willfully damaged the walls , as in the same way as throwing mud up the walls.
Betterment applies as from the original condition less fair wear and tear.
This house was 1 year in from freshly painted when the tenant moved in 3 years wear and tear would obviously involve a few bumps, scrapes scuffs and marks, but i wouldn't expect any damage beyond that.
If say a carpet is damaged beyond fair wear and tear and cleaning were not possible to return it to a state of original condition at occupancy plus wear and tear then replacement would be totally acceptable and not counted as betterment, I don't see why in this case redecoration should not be the same.

zip
18-11-2009, 14:20 PM
The whole of the house does need decorating due to the T smoking in every room. Even the bathroom and ceilings which with normal living would usually be ok for another let.

westminster
18-11-2009, 17:16 PM
If say a carpet is damaged beyond fair wear and tear and cleaning were not possible to return it to a state of original condition at occupancy plus wear and tear then replacement would be totally acceptable and not counted as betterment, I don't see why in this case redecoration should not be the same.

It's exactly the same, but the tenant is only liable for a portion of the cost of replacement, as has been repeatedly explained to you.

Using your example; if the carpet was 8 years old at the end of the tenancy, and expected to last 10 years before requiring replacement due to wear and tear, then LL would be entitled to around 20% of the cost of the new replacement carpet, because the LL's 'loss' was 2 years' worth of use.

If LL charged T 100% of the cost of replacing the 8 y.o carpet, that would be betterment.

In your case, you say you expect to redecorate every 5 years, and by the time the tenant goes it'll have been 4.5 years since you last decorated. You cannot charge the full cost of redecoration, only a portion, i.e. 10%, because all you've actually lost is 6 months' worth of use of the decor.

See "Avoiding Betterment and Considering Apportionment"
http://www.arla.co.uk/infosheets/list.aspx?id=7#

HairyLandlord
18-11-2009, 23:31 PM
That is why I don't take smokers.

What the law allows is a different matter.

There is a scenario where a tenant takes a property as a non-smoker (and the tenancy has a clause in which the tenant agrees not to smoke in the property) but subsequent to moving in, the tenant decides to start smoking, is one that a lawyer told me would be hard to deal with given that smoking, at least in private now, is not unlawful and trying to prevent the tenant from smoking inside the property is riddled with problems, especially in today's "rights obsessed society".

I don't know how one would tackle this and whether a LL would want to, all other things being fine with the tenant.

joelietz
09-04-2010, 21:02 PM
You've provided some really helpful information - Thanks! It's good to know that I have to factor in depreciation when deciding to re-decorate after a tenant moves out.


It's exactly the same, but the tenant is only liable for a portion of the cost of replacement, as has been repeatedly explained to you.

Using your example; if the carpet was 8 years old at the end of the tenancy, and expected to last 10 years before requiring replacement due to wear and tear, then LL would be entitled to around 20% of the cost of the new replacement carpet, because the LL's 'loss' was 2 years' worth of use.

If LL charged T 100% of the cost of replacing the 8 y.o carpet, that would be betterment.

In your case, you say you expect to redecorate every 5 years, and by the time the tenant goes it'll have been 4.5 years since you last decorated. You cannot charge the full cost of redecoration, only a portion, i.e. 10%, because all you've actually lost is 6 months' worth of use of the decor.

ruthieroo
13-07-2010, 11:00 AM
Hi,

I manage the service and maintenance issues for my converted block of flats (owner occupier) at an AGM a few years back there was an agreement between the then owner occupiers and also the owner tenanted properties that the building was to be non-smoking throughout - landlords were asked that their tenants not smoke or permit any smoking at the property.

A flat has recently been sold and the new owner (landlord) does not appear sympathetic to this. When querying with him regarding the non-smoking stance of the building his response was "you better not persecute my tenant". The tenant has been at the property less than a month and is already smoking there. I am reluctant to go to either the tenant or the landlord as do not want to face this hostility however, I do not want to face the prospect of being at home and having to smell this smoke or breathe it in as it seems to penetrate into my flat above and also the communal hallway. What is the best way to tackle this issue?

fletchj
13-07-2010, 11:18 AM
I doubt you have a leg to stand on - smoking in the privacy of your own home is not yet illegal. Unless the lease makes specific provision to allow you to dictate what people do in their own flats (which I seriously doubt) you have no authority to dictate this or power to enforce it. The only similar clauses I have seen state specifics e.g. you can't run a business, the floors must be carpeted to reduce noise etc. and you only have to look through the threads on the leasehold board to see how difficult and expensive even these are to enforce in practice.

Your only hope would be to argue nuisance, in the same way you would if the tenant was overly noisey, but I can't see this being upheld by LVT or the courts. What nuisance is being caused? the smell? the risk of fire? any argument along these lines can be countered by saying - well you need to stop flat 4 cooking curries and flat 6 having candles lit.

You might get a better answer on the long leasehold board.

leaseholdanswers
13-07-2010, 12:20 PM
If they do in the communal areas then the local authority can prosecute them, as it is criminal offence ( but make sure the right signs are up or you'll get a fine), and it is breach of the terms of the lease.

You can recover damages to decorations fixtures etc, and insist that the flat owner ensure that the door is fitted with intumescant strips to prevent smoke entering the hallways firstly as it creates a breach of the terms of the lease by allowing smoking to affect the common areas, and secondly to take reasonable steps to prevent your freehold company being prosecuted for failing to control these areas and prevent smoking.

If the AGM agreed to non smoking and issued it as formal regulation under the lease ( assuming it allows that) then you can enforce the regulation. You could issue a formal regulation if it were presented at a future general meeting( as above). I do believe that there is a fair chance that a judge might overturn it.

If te lease requires an owner to get the landlords consent to underletting, you could inclide a requireetn for non smoking lettings. While it would be overturned if the applied to th court as unreasonable, a flat owner faces the choice of either accepting the condition, or the time and expense of fighting it.

Lets face it how do you relet a flat that smells of smoke and stains finishes and chattels. Its very short sighted of them.

Inside the flat is another issue, as it is legal. The test of a nuisance is in part whether the activity is normal, and this is. Sadly.

If odours do permeate, the landlord of the building can investigate witha smoke test to identify gaps allowing it , and where these are caused by the flat owners repairing obligations, eg gaps in plaster, they can requird 2 remedy, and where part of the remaining building, fix under the service charge, as long as the works are reasonable and recoverable under the lease. Gaps in concrete floors should be eliminated, but as its converted if the floor is wood over joists down to plaster, making it odour tight would be extremely expensive and invasive. You would need advice on the structure.

As long as improvements are permitted under the lease if smoke can penetrate one flat to another easily, then I would be concerned about fire spread and fire smoke and CO transmission, which on advice, could allow you to address those and by coincidence, the other,

jeffrey
13-07-2010, 12:33 PM
If the AGM agreed to non smoking and issued it as formal regulation under the lease ( assuming it allows that) then you can enforce the regulation. You could issue a formal regulation if it were presented at a future general meeting( as above).
So there are two possibilities.
1. Leases prohibit smoking.
2. Leases do not prohibit smoking but do empower L (or Mgt. Co., if it's a party to leases) to introduce Regulations.
If neither of those applies, the AGM vote would have no legal effect at all.

leaseholdanswers
13-07-2010, 12:56 PM
Excellent summary Jeffrey.

My concern and without sounding like a "Daily Mail" reader whether inside the flat (stuctural considerations re fire spread aside) whether the European Convention might apply (ie their human right to kill themselves slowly and increase our tax burden for NHS smoking care - but seriously) if the regualtion were challenged?

The remainder of the post was to look at other options (which in turn might substantiate the need for a regulation);
1: Breach of the lease/Liability of landlord failing to enforce 2
2: Breach of the The Smoke-free (Premises and Enforcement) Regulations 2006 by the local authority
3. Disrepair

leaseholder001
13-07-2010, 13:07 PM
You can recover damages to decorations fixtures etc


That would be difficult to prove.


, and insist that the flat owner ensure that the door is fitted with intumescant strips to prevent smoke entering the hallways firstly as it creates a breach of the terms of the lease by allowing smoking to affect the common areas

I suppose you would also not allow them to come in and out of their flat.



If te lease requires an owner to get the landlords consent to underletting, you could inclide a requireetn for non smoking lettings. While it would be overturned if the applied to th court as unreasonable, a flat owner faces the choice of either accepting the condition, or the time and expense of fighting it.


That sounds a bit dodgy. Refusing consent in the full knowledge that it's unreasonable.



Lets face it how do you relet a flat that smells of smoke and stains finishes and chattels. Its very short sighted of them.


Not really. It doesn't take much to get rid of the smell.



If odours do permeate, the landlord of the building can investigate witha smoke test to identify gaps allowing it , and where these are caused by the flat owners repairing obligations, eg gaps in plaster, they can requird 2 remedy, and where part of the remaining building, fix under the service charge, as long as the works are reasonable and recoverable under the lease. Gaps in concrete floors should be eliminated, but as its converted if the floor is wood over joists down to plaster, making it odour tight would be extremely expensive and invasive. You would need advice on the structure.

As long as improvements are permitted under the lease if smoke can penetrate one flat to another easily, then I would be concerned about fire spread and fire smoke and CO transmission, which on advice, could allow you to address those and by coincidence, the other,

Is all that worth it? If you persecute the tenant then they will probably just leave their door open when nobody is around.

dominic
14-07-2010, 16:12 PM
Excellent summary Jeffrey.

My concern and without sounding like a "Daily Mail" reader whether inside the flat (stuctural considerations re fire spread aside) whether the European Convention might apply (ie their human right to kill themselves slowly and increase our tax burden for NHS smoking care - but seriously) if the regualtion were challenged?

Unlikely.

Otherwise you might be interefering with a lessee's human right by obliging him, e.g.:

1. not to make structural alterations to his own home;
2. not to make noise;
3. not to install wooden or laminate flooring;
4. not to keep pets;
5. etc etc

all of which are perfectly common covenants.

leaseholdanswers
14-07-2010, 19:30 PM
Dominic- appreciate the thoughts

My concern is that regulations have less authority than a covenant in the lease, and deals with a behaviour where defining the breach might be subjective, certainly in part ( save for say damage to decorations) rather than the examples listed which are lets face it supported by tomes of precedent and largely self evident.

Stinking up the common areas while unpleasant is perhaps harder to argue and define a whiff as opposed to a cloud, compared to the upstairs tenant, sitting in their bath, having been suddenly relocated to the lower flats living room, and surrounded by the remains of a load bearing wall and the lower tenant guiltily holding a sledgehammer!

dominic
15-07-2010, 10:34 AM
Yes, enforcing such a covenant would be problematic for the reasons you suggest.

However, just because something is contained within regulations which the lease states the lessee must comply with, doesn't make it any less enforceable, in my view.

jeffrey
15-07-2010, 10:51 AM
Yes, enforcing such a covenant would be problematic for the reasons you suggest.

However, just because something is contained within regulations which the lease states the lessee must comply with, doesn't make it any less enforceable, in my view.
True. The covenant might read, "To observe and perform all further Regulations prescribed by L under paragraph ... of Schedule ... to this Lease."

leaseholdanswers
15-07-2010, 11:32 AM
It has been my experience and that of past principals, based on advice received from lawyers, in one case a now retired leading QC that where the lease allows regulation, it is regarded with less authority. I recall having some real difficulties enforcing a regulation on the wet stack principle ie not to relocate bathrooms/kitchens over habitable rooms.

A supporting decision would largely depend on how approriate and neccessary the regulation is, especially when considering if there is a breach. I had doubts over some at the county court and even more at the LVT when it comes to smoking, judging by the number of panel members lurking outside at break times!

Interesting views though and thanks.

Twohoots
28-07-2010, 19:57 PM
Have had my first tenant in for a couple of months. Did everything by the book (thanks to advice on here) It was drawn up that it was a Non Smoking property & he said that was fine as he didn't smoke. He lives alone.

I am really anti-smoking and the house was newly decorated and smelt beautiful and fresh. I have not been near the house since he moved in.

He asked me to sign a form for him and return it to him which I did. Unfortunately when he opened the door to me I smelt a very strong smell of cigarette smoke. I have a real nose for it because I used to be a smoker years ago. He didn't ask me in either and hurried to close the inner door.

Now he's either taken up smoking, he told me a fib or he is allowing visitors to smoke and I really am not happy about it. When I insured the property I declared that it was a Non Smoking property.

I didn't say a word. What's the best thing to do please?

Snorkerz
28-07-2010, 20:05 PM
At this stage, there is little you can do other that have a conversation with the tenant to remind him of clause XXX in his tenancy agreement.

If he won't comply, you should immediately issue a section 21 notice so you can go through the eviction process at the end of the tenancy's fixed term.

You could also serve a s8 notice under grounds 12 and 17 - but this will cost you £100 to take to court and they are 'discretionary' grounds - basically the judge will make a decision as to whether the breaches are serious enough to warrant eviction.

Section 8 grounds for possession are here (http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=housing+act&Year=1988&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=2128236&ActiveTextDocId=2128476&filesize=4438)

If the house stinks of smoke at the end of the tenancy, you will have to employ professional cleaners and attempt to reclaim the cost from his deposit.

auww08
30-07-2010, 08:23 AM
Tenant Smoking & Breaching Tenancy Agreement
Can anyone advise me on what I can do about a tenant who is smoking in the property rented from me?
My property is a non smoking flat as per the terms and conditions of the tenancy agreement he signed.
I visited my property last night to do a viewing as tenant is leaving soon.
Went in and smelt smoke.
All the flat windows were open.
I had given him advance warning of my visit.
Every time I have done so previously all the windows have been open.
I had thought I smelt smoke on a previous visit and had politely reminded him that the property is a non-smoking property as per the terms and conditions of his tenancy agreement.
This time the smoke alarm was covered over.
The prospective tenant who viewed the property also smelt smoke
My tenant may have burnt hole in sofa
I have secured his deposit in DPS and would like to know what action I can take against him
I am looking at having the property professionally cleaned
Can anyone advise on steps I should take to stay within the law as well as my legal rights?
I would be grateful for any advice information people are able to give me
Thanks in advance

Moderator1
30-07-2010, 10:13 AM
Several largely similar questions on separate threads have been merged into this thread (hence the repetitive nature of answers).

jeffrey
30-07-2010, 11:33 AM
Tenant Smoking & Breaching Tenancy Agreement
Can anyone advise me on what I can do about a tenant who is smoking in the property rented from me?
My property is a non smoking flat as per the terms and conditions of the tenancy agreement he signed.
I visited my property last night to do a viewing as tenant is leaving soon.
Went in and smelt smoke.
All the flat windows were open.
I had given him advance warning of my visit.
Every time I have done so previously all the windows have been open.
I had thought I smelt smoke on a previous visit and had politely reminded him that the property is a non-smoking property as per the terms and conditions of his tenancy agreement.
This time the smoke alarm was covered over.
The prospective tenant who viewed the property also smelt smoke
My tenant may have burnt hole in sofa
I have secured his deposit in DPS and would like to know what action I can take against him
I am looking at having the property professionally cleaned
Can anyone advise on steps I should take to stay within the law as well as my legal rights?
I would be grateful for any advice information people are able to give me
Thanks in advance
As Moderator points out, your question is not a new one! If T has broken the Letting Agreement, you could serve a s.8 Notice on ground 12 (breach of non-rent obligation) but that ground is discretionary only. See posts #8 and #55 on http://www.landlordzone.co.uk/forums/showthread.php?t=28889&page=2

JohnConnor12
02-08-2010, 10:20 AM
if it is stated to be a non smoking patch then it is responsibility of house owner or letting agent to take care of the business..if somebody is getting severe disruption from these factors it is rather unlawful and unethical in part of the responsible's for not acting.

Moderator1
02-08-2010, 16:43 PM
if it is stated to be a non smoking patch then it is responsibility of house owner or letting agent to take care of the business..if somebody is getting severe disruption from these factors it is rather unlawful and unethical in part of the responsible's for not acting.
You are in Alabama; LandlordZONE is in the UK. The law is probably quite different.

PaulF
03-08-2010, 21:01 PM
You are in Alabama; LandlordZONE is in the UK. The law is probably quite different.The law is VERY different. Anyway you don't always expect them to to let detail get in the way!

mind the gap
04-08-2010, 12:10 PM
Has anyone ever successfully applied for a court order for possession based on a T breaching a no-smoking clause in an AST?

lavy
04-08-2010, 15:42 PM
Hi i am a profesional decorator as well as a landlord and if i were to quote for redecorating a room with general ware and tare and another with the same ware and tare plus cigarete smoke damage there would be probably be around 30 per cent more for the smoke damaged room to allow for washing down sealing stains etc. It obviosly makes more work so if tenant smokes in a non smoking house then they should at least be liable for the extra costs to put right . There is also the increased fire risk . I know it has been mentioned that decoration should have a certain life span say 5 years and if it has been done for that long then landlord has not suffered any loss because it needed doing anyway fair enough. BUT to redoo it with smoke damage involves more work and so extra cost so why shouldnt the tenant pay for this.

mind the gap
04-08-2010, 17:16 PM
Hi i am a profesional decorator as well as a landlord and if i were to quote for redecorating a room with general ware and tare and another with the same ware and tare plus cigarete smoke damage there would be probably be around 30 per cent more for the smoke damaged room to allow for washing down sealing stains etc. It obviosly makes more work so if tenant smokes in a non smoking house then they should at least be liable for the extra costs to put right . There is also the increased fire risk . I know it has been mentioned that decoration should have a certain life span say 5 years and if it has been done for that long then landlord has not suffered any loss because it needed doing anyway fair enough. BUT to redoo it with smoke damage involves more work and so extra cost so why shouldnt the tenant pay for this.

Hi lavy. I don't think anyone is questioning that liability, really. What nobody seems clear about is whether a LL can legally insist his T does not smoke in his or her home, and if so, whether the LL's has any realistic means of enforcing that ban in practice.

lavy
05-08-2010, 08:25 AM
yes i realise that enforcing no smoking is dificult but if tenant is made aware that they will face having to pay for the damage caused by there actions it may make them think twice

Terry_Baker
05-08-2010, 09:09 AM
If they have signed an agreement to not smoke, and smoke anyhow is it not possible to give them notice to leave? Obviously a bit drastic.

jeffrey
05-08-2010, 11:35 AM
If they have signed an agreement to not smoke, and smoke anyhow is it not possible to give them notice to leave?
Yes. Here's (discretionary) ground 12 in Schedule 2 to the Housing Act 1988:

Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.

Terry_Baker
05-08-2010, 11:36 AM
Yes. Ground 12 in Schedule 2 to the Housing Act 1988.

Would you need evidence or can you simply go ahead and do it?

jeffrey
05-08-2010, 11:40 AM
No (no hard-copy evidence needed when serving s.8 Notice); but yes (evidence needed at Hearing).

mind the gap
05-08-2010, 11:47 AM
Yes. But since this ground (12) is only discretionary, you are not guaranteed a possession order and thus to be able to enforce eviction. Hence my question earlier! How likely is it? Has anyone ever achieved it?

Terry_Baker
05-08-2010, 12:03 PM
Well as previously mentioned I guess it could be stressed on the point that if there are any damages in the property from smoking than it will come out of the deposit. But getting someone evicted for smoking? hmmm interesting question.

mind the gap
05-08-2010, 12:18 PM
Yes. It is why I asked it.

I suspect in practice the outcome would be more to do with the personal predilection (or not) of the judge for tobacco, than anything else, although few people, including me, would want to risk the few hundred or more it would cost to test my theory.

I know of two LLs who have sought possession on the grounds that the T has breached the TA by keeping dogs when this was prohibited (for good reasons). Very similar situations - one won, the other lost. I bet the judge in the second case had been bitten by an Alsatian at some point.

remyrobson
05-08-2010, 12:43 PM
Could ground 17 be used if T has filled in an application stating that they are a non-smoker?

mind the gap
05-08-2010, 14:08 PM
Could ground 17 be used if T has filled in an application stating that they are a non-smoker?
Interesting idea! But doesn't that just apply to the truthfulness (or otherwise) of information given at the time of applying? In other words, they may truthfully have declared themselves to be a non-smoker at the time they applied, but might have taken up the habit since moving into the property. In which case, I don't think ground 17 would get you very far.

Also, declaring oneself to be a non-smoker is not technically the same as promising not to smoke (or allow your family or guests to smoke) when in the property.

Plus...ground 17 isn't a ground for mandatory possession either, is it?

jeffrey
06-08-2010, 14:24 PM
Interesting idea! But doesn't that just apply to the truthfulness (or otherwise) of information given at the time of applying? In other words, they may truthfully have declared themselves to be a non-smoker at the time they applied, but might have taken up the habit since moving into the property. In which case, I don't think ground 17 would get you very far.

Also, declaring oneself to be a non-smoker is not technically the same as promising not to smoke (or allow your family or guests to smoke) when in the property.

Plus...ground 17 isn't a ground for mandatory possession either, is it?
No. As it's in part II of Schedule 2, it's discretionary (as are 9-14, 14A, 15, and 16).

gardeningmad
29-08-2010, 03:24 AM
As a S8 is highly unlikely to succeed, regardless of whether the judge smokes or not, then surely an s21 is the route to follow. Why try and evict with a reason when you can do it with none? :confused:

Ericthelobster
29-08-2010, 09:46 AM
As a S8 is highly unlikely to succeed, regardless of whether the judge smokes or not, then surely an s21 is the route to follow. Why try and evict with a reason when you can do it with none? :confused:For sure, if the tenancy is periodic. But what about if you're one month in to a 12-month fixed term and discover the tenant's smoking like a chimney? You'll have another 11 months before you can action the S21. To be honest, that's the more probably scenario anyway, given that if a tenant has lied about being a non-smoker in his original application, he's not going to wait 12 months before deciding to start smoking in the house.

jeffrey
29-08-2010, 21:30 PM
True; or, if it's an SAT, the option of using s.21 cannot arise at all.

nosnip
13-11-2010, 18:25 PM
Hi can anyone help or advise me?

My tenant has just moved out and has been heavily smoking in the property..absolutely stinks and needs painting throughout and carpets need to be disposed of.

I let the house out through an agency who have been useless! I asked if we could hold back some of their deposit for smoking but the agent advises me that the deposit scheme people will be on the tenant's side.

Has anybody had this experience before?

Many thanks in advance.
Nosnip

jta
13-11-2010, 18:46 PM
Your agent is right. You would be able to claim for cigarette burns to furniture etc. even there I would not think you would win. When you let a property you are agreeing to let the tenant use it as his home, it's none of your business if he has habits you disagree with. So far as I know it's not yet illegal for people to smoke at home.

A deep clean should sort out the smell so charge him for that, maybe you just have a sensitive schnozzle.

property mongrel
13-11-2010, 18:56 PM
What if a non-smoking clause had been put in the TA?

I use such a clause in my TA, and if a T smoked in my property I would seek to charge them for neutralising any stench.

pm

westminster
13-11-2010, 19:27 PM
Several threads (merged) on the subject of smoking
http://www.landlordzone.co.uk/forums/showthread.php?18653-T-s-smoking-(prohibited)-damaged-property-claim-costs

How adjudicators assess claims on the deposit
http://www.propertyhawk.co.uk/index.php?page=magazine&id=411

mind the gap
13-11-2010, 22:45 PM
Your agent is right. You would be able to claim for cigarette burns to furniture etc. even there I would not think you would win. When you let a property you are agreeing to let the tenant use it as his home, it's none of your business if he has habits you disagree with. So far as I know it's not yet illegal for people to smoke at home.

A deep clean should sort out the smell so charge him for that, maybe you just have a sensitive schnozzle.

I cannot think this is the case if a non-smoking clause is part of the contract. It is not unreasonable and the T would be in breach of contract.

Snorkerz
14-11-2010, 11:39 AM
My opinion is that although it is the tenants right to smoke in the property (providing there is no clause) it is the landlords right to have the property back in the same condition as when it was let - ie sans stink. So, providing the inventory has comments along the lines of - paintwork fresh & clean (ie no nicotine) and (less likely) fresh smelling, then the LL can charge whatever it takes to get it back to that condition - less wear and tear.

mind the gap
14-11-2010, 12:36 PM
I have long been of the opinion that there is a opening in the market for scratch 'n' sniff inventories. I will work on it. Perhaps I will patent the design and make my fortune out of it.

PaulF
14-11-2010, 21:28 PM
I cannot think this is the case if a non-smoking clause is part of the contract. It is not unreasonable and the T would be in breach of contract.Apparently it is a breach of T's "yuman rites" to prevent their smoking by the use of a standard prohibition clause. However, you can use a special tenancy conditions clause whereby T agrees beforehand not to smoke (or allow any visitors to do so) as it would have been separately negotiated and therefore enforceable.

mind the gap
14-11-2010, 21:29 PM
Apparently it is a breach of T's "yuman rites" to prevent their smoking by the use of a standard prohibition clause. However, you can use a special tenancy conditions clause whereby T agrees beforehand not to smoke (or allow any visitors to do so) as it would have been separately negotiated and therefore enforceable.

So how is such a clause to be identified in the TA? Under a separate heading, or what? I am struggling to see why it should have to be. Either T has read and the agrees to the conditions imposed by the TA (that's what he's signing to show, isn't it?) or he does not.

jeffrey
14-11-2010, 21:33 PM
So how is such a clause to be identified in the TA? Under a separate heading, or what? I am struggling to see why it should have to be. Either T has read and the agrees to the conditions imposed by the TA (that's what he's signing to show, isn't it?) or he does not.
Here's what Paul_f means, I think.
Pre-packaged standard clauses are susceptible to 'Unfair Contract Terms' challenge. 'Human Rights' legislation does not apply, however.
Individually-negotiated ones aren't.

mind the gap
14-11-2010, 21:50 PM
Here's what Paul_f means, I think.
Pre-packaged standard clauses are susceptible to 'Unfair Contract Terms' challenge. 'Human Rights' legislation does not apply, however.
Individually-negotiated ones aren't.
Yes, but how do you show, in the contract, that a non-smoking clause has been individually negotiated and agreed? Simply by giving it its own special little heading : Individually Negotiated Clauses?

jeffrey
14-11-2010, 21:56 PM
Yes, but how do you show, in the contract, that a non-smoking clause has been individually negotiated and agreed? Simply by giving it its own special little heading : Individually Negotiated Clauses?
It depends.
1. If L is using a pre-printed form, additions are clearly identifiable.
2. If the entirety is word-processed, they're not.
3. L could preface them (para. 1) or the entirety (para. 2) with a clause stating that they were individually negotiated. Such clause would have little or no value.
4. In any event, the onus of proof would be on L to show that they were individually negotiated- not on T to show that weren't.

theartfullodger
08-02-2011, 09:21 AM
Just a hint for anyone looking later..

Took a house back from "good" tenants, couple had split, all got a bit messy, no rent outstanding & condition of house was OK - so returned the deposit (Scotland.. - nae deposit schemes yet..).

But then moved in for a few weeks to sort various works out there & another property (both 520 miles from my normal PPR abode...) and noticed lingering fag-smoke smell in 2 rooms.. Wanted to get rid of it, had to go to IKEA anyway & the wife had asked me to buy some "tea-lights" so I did, got 2x100 plain @ £1:99
http://www.ikea.com/gb/en/catalog/products/50097995
& 2x48 scented @ £1:42..
http://www.ikea.com/gb/en/catalog/products/00180874

.. and thought - I'll try those scented candle thingys!!

Well, after a couple of days it seemed to have worked.. Place smelt a bit like a Turkish br**hel (allegedly..). Also assists removing smells of cooking fish I found...

Sigh! I must get a life...

Mrs Mug
08-02-2011, 10:46 AM
I'll try those scented candle thingys!!

Well, after a couple of days it seemed to have worked.. Place smelt a bit like a Turkish br**hel (allegedly..). Also assists removing smells of cooking fish I found...

Joss/incense sticks are also very good for this purpose.

theartfullodger
08-02-2011, 12:04 PM
Joss/incense sticks are also very good for this purpose.

Wow! Taken back to the '60s... student days...

Berlingogirl
11-09-2012, 09:41 AM
My TAs have both a no-smoking clause and a 'don't cause a nuisance to others' clause. Smoking breaks both these clauses. As a LL I would ask the girls not to smoke and if they continued to do so serve them notice and deduct all cleaning bills from the deposit.
And, Mindthegap, just WHAT is wrong with frill light-shades? I wear them all the time.