Smoking and Vaping: Should it be allowed in a rental property?

Stoptober, Public Health England’s 28-day campaign to encourage people to to give up smoking for the duration of October is well underway.

This nationwide campaign has seen over one million people attempt to stub out the habit, taking action on smoking and health, and is the biggest mass attempt to quit in the country.  

All this is great news for landlords. A whopping 53.6% of smokers in the UK rent within private or housing association properties, however only 7% of private landlords are open to letting their tenants light up – so there’s a serious issue burning away in the sector.

Can you stop a tenant smoking in a property?

Including a clause in a tenancy agreement stating that no smoking is allowed in the property would make it very clear that this behaviour is not acceptable under the terms of the lease, and that the tenant is acting outside of the terms that have been agreed to. It would be possible at this stage to terminate the lease based on breach of contract via a Section 8 notice.

However, landlords are under an implied obligation to allow their tenant quiet enjoyment of the property, meaning a landlord must not interfere (or allow anyone else to interfere) with the tenant’s enjoyment of the property. It could be considered that if a tenant is a smoker, not being able to smoke in peace in their property could be a breach of their quiet enjoyment of the property. At this stage, it would be down to the discretion of the judge to decide who was the party in the right.  

With this in mind, it is worth considering that if by the stage that these new developments have come to light, the damage may already have been done. If a tenant has already been smoking in the property, the smell – often the worst element – will already be present. Rather than going through the process of eviction which can be costly and drawn out, you could consider choosing not to renew the contract at the end of the term, and instead spend the money on a spruce up of the property when the tenant has left.

How is vaping different to smoking?

Over 2.3 million adults in the UK already ‘vape’, and with many people moving away from cigarette smoking and onto vaping kits, it’s likely that the question of whether or not to allow electronic cigarettes or vaping is one that could be faced by many landlords.

The potential damage caused by cigarette burns and the lingering cigarette smoke smell are often key reasons cited for landlords not wanting to allow smoking in their property. Damage from nicotine build up on walls and ceilings from smoke and ash are others. Vaping theoretically removes these issues, but should it carry the same rules?

A cigarette, cigar or pipe requires a flame to burn to be smoked, an e-cigarette or vape is powered by a rechargeable battery, and uses liquid nicotine to produce a mist, or ‘vapor’ which is then inhaled. Although vaping produces a cloud of vapor once dispersed this leaves no trace, unlike smoking.

Choosing whether to allow your tenants to vape is a personal choice, however, unlike smoking it is likely to be very tricky to detect if they are doing so in your property unless they come clean about it. If your tenant is open about their vaping habit, you could choose to include a banning clause in the tenancy agreement– although this is likely to be near impossible to enforce. Alternatively, you could allow vaping, but refer to the ‘no smoking’ clause in the tenancy agreement, and reiterate that vaping and the use of electronic cigarettes are acceptable, but a smoking ban is still in place.

What if you have more than one tenant?

If your property has any Common Parts (the shared areas of a property shared by multiple indiviual tenants – kitchens, bathrooms, toilets, staircases, entrances etc) you must be significantly stricter about enforcing a smoking ban in your property. This is because your property is directly affected by the National Smoke Free Legislation, the same law that impacts our workplaces, cafes, bars and pubs, and your tenants are protected from the health risk of second hand smoke. There are no vaping guidelines within this remit.

Not only is smoking not allowed in these areas, but signs and documentation must be displayed to comply with the regulations. Downloadable copies of the official template signs are available here. Your local authority will have an appointed smoke free officer who can assist with any queries on how to modify your property to comply with the smoke free legislation.

Howsy’s Top Tips for dealing with this burning issue:

  • When advertising for a prospective tenant, specify non-smoking only
  • Include a clause in your tenancy agreement that smoking/vaping in the property is not permitted
  • Reiterate your feelings when you meet with your tenant, and explain your reasons
  • Ensure that all of your insurance policies accurately reflect your tenant’s habits – update if necessary
  • If you have shared areas, make sure ‘No Smoking’ signs are clearly displayed