Proof required of cigarette or weed smoking?

I think lots of us have jumped to assumptions on this post and we could do with a bit more information. I have assumed it is a house where the co renters have chose to rent together and are purely smoking cigarettes or weed, others have presumed it is an HMO where there are several people who may not be linked, others are talking about growing drugs which is a totally different ball game. Could some of these points be clarified?

Nest alerts my mobile phone if the smoke alarm goes off in my rental property. You could screen grab everytime this happens.

Reply to the comment left by Yvonne Francis at 06/02/2018 - 14:27
Hi Yvonne, I think what you may or may not be liable for, as the landlord, is perhaps different depending on whether the property is a HMO or a self-contained property, and it is not clear from your original post which of these it is. If it is a self-contained property, then the tenant can pretty much exclude you from the property, and you are virtually powerless in terms of what you can do, and as such your only real option would be to serve the s21 Notice and evict the tenants at the end of their fixed term. I don't think that you could be held liable for them smoking weed in your property, UNLESS you were in some way complicit (e.g. you ignored it or allowed it to happen). Sending a warning letter, followed by a s21 Notice, would be evidence that you are not complicit and thus not liable.

If it is a HMO, then you are right to say that you could perhaps be held liable for some actions of your tenants within your property, particularly in communal areas. Even if it is a HMO, it could still be let to a group of people on a joint tenancy of the whole property, which again means that they can exclude you from the property as they would jointly have "exclusive possession", in which case your powers are minimal as they would be the same as letting a whole property to an individual or a family household.

Some HMOs are let on a room by room basis, and in this case then the individual rooms are most likely to be let on individual assured shorthold tenancies, with you retaining access to the communal areas, but perhaps having no legal right to enter the individual rooms (as the tenants would have "exclusive possession" of their own room). Again the power a landlord has to take action is very limited, because you have to follow a particular procedure to evict the tenant (from the tenancy of their room), BUT at the same time you could perhaps also be liable for the actions taking place in the communal areas, so if it is happening in the communal areas then you have to be seen to be doing something to address the issue. You could report it to the police (knowing they will probably do nothing), you could send warning letters to the tenant(s), you could still serve the s21 Notice(s) and go through the lengthy and costly process of evicting the tenant. Of course, simply sending the warning letter may be sufficient to stop the behaviour that you suspect is happening (though this is perhaps doubtful).

Can you clarify what type of letting it is, and whether it is tobacco or cannabis (or something else) that is being smoked?

Reply to the comment left by Chris Jordan at 06/02/2018 - 15:03
Hi Chris

Your experience of police action is obviously different to mine.

I've reported drug use and drug dealing and other anti-social behaviour by some residents in my HMOs before now, and have even given the police a set of keys to the property and a letter authorising them to enter the property (limited to my rights of entry of course), and still the police did nothing. They allowed the tenants to continue dealing drugs from the property. This has been the case at several properties over the years, and this is where actual dealing is taking place (not just smoking a bit of weed, or personal possession of drugs). The police simply tell me to evict the tenants, so that is what I have to end up doing, but it takes many months to go through the courts and the police allow the tenants to continue their criminal behaviour in the meantime.

I had one case where police officers entered a flat with a warrant looking for one tenant (who was not there), and in the other tenant's room they found cannabis (weed), weighing scales, sealy bags, and a used bong (drug pipe), but they point blank refused to do anything about this saying it was "not their priority", so they just left it all there and did NOTHING. - Yet another case where it was left for the landlord to evict the tenant (taking many months and at great financial cost) because the police would not do their job.

If the police in your area are better than this, then that is great, but my experience of dealing with the police in three different police force areas is that they are unwilling to assist private landlords to deal with anti-social or criminal behaviour that may be being carried out by tenants.

I am aware of the possibility of a closure order, I see these reported in local press etc, but it is always in relation to Council housing or registered housing association housing, I have NEVER seen this in relation to private rented housing (presumably because the police suggest that the landlord evict the tenants via the courts, rather than using a closure order?).

Reply to the comment left by Robert Mellors at 07/02/2018 - 09:10
Could I question you on one point. If you have a licensed HMO on a joint tenancy you do have the right of entry under the powers of the Council and if a tenant refuses access then the are 'impeding the manager in their management'. There is 24 hour warning required, except for emergencies and all these points are mentioned in my lease including the power to send in cleaners and charge them if that's reasonable of course.

I've never really understood others sectors, although I have seen many landlords say what you do. I don't understand why the right to inspect the property with 24 hour written notice can not be written into all leases. Perhaps that's not acceptable to some tenants but it's not an option for mine as without this I could not manage my properties and could loose my license. All HMO's have to be managed and whether they are joint tenancies or not makes no difference to that aspect.

Reply to the comment left by Yvonne Francis at 07/02/2018 - 11:06
Hi Yvonne

If you have a licensable HMO (and you have the licence) that is let to a group of tenants on one joint assured shorthold tenancy agreement, then I believe that you have granted that group of tenants "exclusive possession" of the whole property (including gardens, outhouses, etc), and as such I believe that they have a right to "exclude" others from the property, i.e. deny them access. (there are exceptions of course, e.g. police may have powers of entry with a warrant etc). If this is the way that you have let your property, then I believe you may have a major problem because you have various management duties under the HMO Regulations, but the way the tenancy is set up you have no legal right to enter the property to manage what is going on in it or carry out repairs and maintenance. Regardless of what it says in the tenancy about granting you access with 24/48 hours notice etc, if they refuse you entry (when they have "exclusive possession"), then you would have no recourse except to serve Notice, and then pay to apply to court, and go through a lengthy court process to evict them, just so you can regain access to your property (but then you have no tenants!!!!).

If you do individual room lettings, then presumably your tenancy agreements only give "exclusive possession" to the tenant of their own room (NOT exclusive possession of the whole house), and you will have retained a legal right to enter the communal areas as and when you wish to do so (for a legitimate purpose, e.g. checking what maintenance is needed etc). If the letting is set up like this, then you do have a legal right to enter the property (communal areas) to inspect the condition of the property and carry out such works as may be deemed necessary (and of course this would assist with more effective management of all the individual tenancies within that property).

Reply to the comment left by Robert Mellors at 07/02/2018 - 11:38
https//www.rentify.com/resources/landlords-and-hmos

If you can get this link to work and go to General Legal Responsibilities, further down to: Tenants of HMO's also have legal obligations... The first point is 'allow you (meaning Landlord or manager) reasonable access and not obstruct you in completing your duties.' They mention a £500 fine for tenants if they do not allowed this.

I appreciate this can be a controversial and somewhat complicated question but the whole licensing of HMO's would not make much sense with out this. Besides my own visits I have to send in people to check gas and fire bell as well as Environmental Health officers from the Council.

I've been a Landlord for forty years and I have never had problems of access. I let to students from Oxford University and they are some of the brightest youngsters in the world along with their professional parents so it would be difficult to pull the wool over their eyes. Most, in fact probably all of the student houses are let on joint tenancy in my area. My tenants are always very polite and charming and sometimes I enjoy my inspections. I shudder at some of the stories I hear on 118 at the type of tenants other landlords seem to have to deal with.

Reply to the comment left by Yvonne Francis at 07/02/2018 - 12:59
Hi Yvonne

It is great that you have been lucky enough to have very good compliant tenants up to now, however, it does not necessarily mean that they will always be like that in the future, so it is best to prepare for the worst and hope for the best. In the worst case scenario you could have problems because of the legal duties imposed on you under the HMO regulations, while at the same time being deprived of any legal way of complying with those duties because of the "exclusive possession" that your joint tenants have. This would then put you in an impossible situation, and yet you could still be held legally liable.

The HMO regulations do put duties on tenants (for which there is a possible fine), but it is the local authority that is responsible for enforcement, and in my experience they will not seek to prosecute the tenant (even if the situation giving rise to the "offence" is caused by the tenant), as prosecuting the landlord is much easier and would get better media publicity for the council (all part of the demonisation of private landlords).

The fact that the duties under the HMO Regs may be impossible to comply with (if tenants do not co-operate) without breaching other laws, e.g. breaking into a tenant's home, is of no concern to the councils, it is not their problem, it is a problem for the landlord to resolve (through the courts or through representations to parliament or whatever other means). However, there is a defence of "reasonable excuse" for non-compliance with HMO Regs, BUT setting up tenancies such that you exclude your own ability to enter the property to manage it or maintain it, may or may not be accepted by the courts as a "reasonable excuse" defence.

Reply to the comment left by Robert Mellors at 07/02/2018 - 20:34
I appreciate the fact, Robert that if my tenants refused entry then I would be placed in a difficult position which may take time to resolve. However if my tenants refused access to, say... repair the fire alarm system or replace smoke detectors and had subsequently turned the system off they would have to take the consequence of their actions as long as I had the necessary proof and charges as serious as manslaughter could be bought against them in a worse can scenario. Do you think anyone of sense would risk this?

I see your point about the possible non actions of Councils and only wanting to prosecute Landlords as that's popular, but if I received no help from the Council in carrying out my duties, a Council who have hundreds of student HMO's in the city and who were the forerunners of HMO status they would look very foolish and at worse negilence in their duties to ensure compliance on every side.

Thanks for the warning but after forty years of letting I feel fairly confident of getting compliance. In the first place most of it is for their own safety and if they did not comply I'm sure their parents who act as guarantors would be concerned. The University of Oxford comprises of colleges which are fairly small units so the students have good pastoral care and any thought that their students were at risk or preventing me from carrying my legal obligations would be acted on immediately and their powers are unbelievable. My houses are highly sort after and are usually let to their friends in the following tenancy. One group I have are determined to keep the house for their college. Any problems I would simply move on to another college. It's 'tit for tat' as they say.

I don't know what sort of letting you are in which appear to me to make you so apprehensive, if that is, you have HMO's. I realise that letting outside of HMO's are more difficult in relation to this problem and I can understand when landlords feel they are between a rock and a hard place. But I believe HMO's have protections and even you admit there are tenants obligation which Council can ensure are respected. But there are for me other avenues and I believe very strongly in reason and common sense which I find students have in abundance. That why even though they are a domestic nightmare requiring difficult annual change over of tenancies they are great tenants for me.

Reply to the comment left by Mike at 06/02/2018 - 11:27Hi Mike what about smoking infront of an entrance. As a non smoker I'm struggling with a new housemate who smokes outside a small backyard or the front door so everytime she opens the door to come back in, the smoke enters the house. I'm coughing and feel nausea. My throat and airways impacted I'm unable to sleep with violent coughs.

Backyard and front door are common areas which expose others to second hand smoke. Is this not a violation of the law? So how can you permit even smoking in the garden in an HMO?