Smoking tenant

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    Smoking tenant

    Please can you offer us advice as to whether there is any action that can be taken to stop a very serious situation of anti social behaviour.My wife and myself own 2 maisonettes a upstairs owned by me that we both live in and a downstairs that is owned by my wife and she has rented the property out for the past 15 years to the same Tenant a elderly retired person on housing benefit.The benefit is paid directly into my wife's bank account from the council so no problem with rent arrears.The tenancy is a assured shorthold tenancy agreement arranged directly with the person.When they originally signed the agreement nothing was written into it that said that they could not smoke only a verbal agreement that they would smoke in the kitchen with a open door but mainly this has been ignored. The only other clause in the tenancy agreement says that they should not cause a nuisance to other neighbours. The person has always been a heavy smoker and over the years we have smelled the smoke in the upstairs property at times but have managed the problem bearing in mind that they have spent long periods of being out so we did not have long to suffer the inconvenience.During the past 3 years the person has been in the property much more and especially the past 1 year as the lockdowns have been with us.They now seem frightened to go out.We have but mainly myself have verbally spoken to them probably over 50 times to ask them to open the door or smoke outside but the requests have fallen on deaf ears.Sometimes these conversations have become very heated and they have said to me that they are entitled to do what ever they want in their own property and unless I stop harassing them they will report me.We have spent hundreds on extractor fans and sealing the floors in both properties and keeping the upstairs windows open but nothing helps with the continue barrage of smoke.The construction of the property is such an older build and wooden floors so the smoke can easily pass through.The smoking starts about 0630am till 11pm 24/7. I would estimate they must be smoking about 60 cigarettes a day.Even out in the garden the stink exists and the place looks like it's on fire with the smoke escaping.We have become quite ill with the effects permanent sore burning throats coughing and wheezing stinging eyes and are in danger for our health.My wife as the landlady has issued a section 21 notice that expires beginning of August but strongly suspect they won't leave and we will have to get a court order that will take many more months.We can't stand another 5 minutes of the smoke let alone many more months.I have spoken with a few legal professionals and they tell me that there is nothing we can do to stop it and indeed if we keep complaining to the tenant we could indeed be prosecuted for harassment.We feel we cannot carry on living there anymore.The situation is ridiculous that we can be driven out of our own properties and the law seems very much on the side of the tenant for killing us.I have also tried contacting the local council environmental health department but they will not phone me back and on their website it says they don't investigate smoking issues in private dwellings unless the smoke is entering a communal area.In your view if I only (not my wife)keep knocking at her door to try to stop the smoking could I be arrested for harassment and would it effect my wife's legal status or is there anything else you think we can do.
    All advice would be appreciated.
    Many thanks.

    #2
    You have been provided the advice by your legal council, if you want them out seek possession of the property (do it before S21 is removed), you need to now moved to the next stage which is put in an application for possession, then finally bailiffs. I would also stop complaining to the T's it is harassment, and they are entitled to a private life within their property, I'm not sure how you would have been able to enforce the smoking to only the kitchen area, without monitoring inside the property.

    Make sure you limit your contact with the T only the essential communications, do not communicate about the court case etc, just tell them to seek legal advice. Since you live in the block it will be hard to bump into them, and I'm sure emotions will be heated. Just go into your flat and ensure it's well ventilated.

    Comment


      #3
      Yes I agree with the above. Make sure you have complied with statutory requirements to ensure any s21 is valid.

      Comment


        #4
        I can only echo the above comments, you have done what you need too, although to be honest i would have taken this action years ago, if you have never liked all the smoke then why put up with it for so long...... I would be very unhappy about all the smoke but i would seriously consider selling both properties and buying something detached ! If it is rented again then what guarantee do you have that the next tenant will not do exactly the same or be smoking weed..... quick answer - You cannot.

        Comment


          #5
          This bit concerns me

          "The construction of the property is such an older build and wooden floors so the smoke can easily pass through."

          Smoke should not be going through the floor into another flat. You should have a something like fire retardant boards on the ceiling of the lower flat.

          Comment


            #6
            Good point, there is no way smoke should be entering your property unless through open windows so it might be cheaper to seal these gaps than evict him so save your money, he will probably die before you can get bailiffs round to evict.

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              #7
              It's the fire safety issue that concerns me. If the lower flat catches fire there should be some fire barrier to stop fire spreading to the upper flat.

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                #8
                Surely allowing smoking invalidates your insurance?



                Freedom at the point of zero............

                Comment


                  #9
                  Many thanks for all your replies and I take on board what you say and agree that you are probably right however I fail to understand that the law can be such an ass. How can it be that a tenant is allowed to kill us with toxic smoke and if we dare to challenge them then we can be prosecuted for harassment? What about our rights to be able to enjoy our property without us being harassed by not being able to breathe. Honestly, do you really think this is acceptable behaviour to have to endure? It's all very well smoking in your own property but if that smoke is entering someone else's property, then that is not o.k. What are we supposed to do suffering severe reaction and possible long term life threatening symptoms

                  We both find it almost impossible to carry on our “normal” lives with the situation as it is because of the impact not just to our physical health but also to our mental health and to have to endure it for 5 minutes is hell (even if we try having the windows open, this seems to act like a funnel pulling the smoke up from between the floorboards and the cavity walls making it even worse) let alone probably another 18 months Surely if the case went to court the judge must see common sense and side on our side.
                  It does feel like we are being told to sit back and accept the situation as all of the rights in Law are on the tenant’s side, but how can we? If any of you were in a similar situation, what would you recommend doing? If someone plays load music they can be prosecuted yet this is more severe. As you can tell, we are very angry with the situation. Your comments please.

                  Comment


                    #10
                    As you've asked for comments:

                    The property you rent out is clearly suffering from structural or similar issues if smoke is coming up through a ceiling/floor. You own the property so you have some responsibility towards this. To me, and obviously only my opinion, you've not made any comments which suggest you accept that.

                    Judges act on the law, not one person's opinion 9f common sense.

                    You comment about your mental health but don't seem to have any concerns with actions that really do sound like harassment to your tenant.

                    Get your floor sealed properly and that should help

                    Comment


                      #11
                      If you weren't letting the property and it was an owner downstairs you wouldn't have any option to remove the occupant, so the law is actually quite helpful here.

                      And, I have to echo the other poster's comments, there's no way that cigarette smoke should move between two separate properties (other than outside and through windows).
                      That just shouts fire hazard.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Issue a s21 . . ..

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