Question 1

Smoke Drift

Accepted Answer

Q: We have one flat occupied by an elderly lady tenant who smokes heavily. The smoke escapes occasionally onto the landing outside her flat entrance door and causes perceived annoyance to some other residents. When this issue was raised with the owner of the flat on a previous occasion she cooperated by fitting new seals around the entrance door but these have not proved totally effective, maybe due to the airflow dynamics through the four storey stairwell involved. We have nothing in the lease, deed of covenant or rental agreement to control smoking within individual flats, but we do display 'no smoking in communal area' signs. If the complainant(s) insists further action be taken then we would appreciate knowing our options and in what order any steps should be taken. We may be wrong, but feel this scenario is more complicated than, say, loud TVs or music in that cigarette smoke pollution in communal areas might be an area already subject to existing legislation. FPRA Committee Member Shaun O’Sullivan replies: I fear that I can offer few words of comfort to those suffering the effects of ‘smoke drift’ in your block. Smoking in internal communal areas of blocks of flats has been banned for the last 10 years. In this regard those who do smoke in such areas can be fined as can Residents’ Management Companies (RMCs) if they do not enforce the ban. Equally signage, of at least A5 size and displaying the international no-smoking symbol in colour and of a minimum diameter of 70mm (3 inches), has to be displayed in a prominent position. It would appear, from what you say, that the lady in question is confining her smoking to the flat itself and that you do have appropriate signage. Also it would appear that the flat is sub-let, that the tenancy agreement does not place any restrictions on smoking and that the owner of the flat has no objection to her tenant smoking in the property. Although legislation underpinning restrictions on smoking was extended to cars when children are present, I am not aware of any move to ban smoking in one’s own home. So far as the lease is concerned, there is (perhaps not surprisingly) nothing specifically to ban smoking, albeit the Paragraph 8 of the Fifth Schedule does impose a restriction on the Lessee not to cause any annoyance, nuisance or disturbance to the Lessor or other Lessees. In practical terms, however, and on the basis on what action has already been taken by the owner of the flat to try and reduce the effects of smoke drift, I’m not sure what more could be done in this regard – other than perhaps encouraging the owner to consider banning smoking in the property in respect of any future tenancy agreements and when the current tenant moves out. Perhaps the only possible hope is to seek the help of the local authority. My understanding is that local authorities do have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints of ‘statutory nuisance’ as set out in the Environmental Protection Act 1990. Complaints of smoke passing from one premises to another would usually be carried out by local Environmental Health Officers (EHOs) who would need to determine whether the problem constituted a ‘nuisance’ under the terms of the Act. However the EHO is, perhaps understandably, required to balance differing interests and to assess what is ‘reasonable’ in the circumstances and to determine whether the effect of the smoke is prejudicial to health. Equally the assessment of what constitutes a ‘nuisance’ must take into account the standards of an average person (rather than someone who is hypersensitive) as well as the duration, frequency and severity of the problem.’ [submitted April 2016]

Question 2

Smoke Drift

Accepted Answer

Q: We have one flat occupied by an elderly lady tenant who smokes heavily. The smoke escapes occasionally onto the landing outside her flat entrance door and causes perceived annoyance to some other residents. When this issue was raised with the owner of the flat on a previous occasion she cooperated by fitting new seals around the entrance door but these have not proved totally effective, maybe due to the airflow dynamics through the four storey stairwell involved. We have nothing in the lease, deed of covenant or rental agreement to control smoking within individual flats, but we do display 'no smoking in communal area' signs. If the complainant(s) insists further action be taken then we would appreciate knowing our options and in what order any steps should be taken. We may be wrong, but feel this scenario is more complicated than, say, loud TVs or music in that cigarette smoke pollution in communal areas might be an area already subject to existing legislation. FPRA Committee Member Shaun O’Sullivan replies: I fear that I can offer few words of comfort to those suffering the effects of ‘smoke drift’ in your block. Smoking in internal communal areas of blocks of flats has been banned for the last 10 years. In this regard those who do smoke in such areas can be fined as can Residents’ Management Companies (RMCs) if they do not enforce the ban. Equally signage, of at least A5 size and displaying the international no-smoking symbol in colour and of a minimum diameter of 70mm (3 inches), has to be displayed in a prominent position. It would appear, from what you say, that the lady in question is confining her smoking to the flat itself and that you do have appropriate signage. Also it would appear that the flat is sub-let, that the tenancy agreement does not place any restrictions on smoking and that the owner of the flat has no objection to her tenant smoking in the property. Although legislation underpinning restrictions on smoking was extended to cars when children are present, I am not aware of any move to ban smoking in one’s own home. So far as the lease is concerned, there is (perhaps not surprisingly) nothing specifically to ban smoking, albeit the Paragraph 8 of the Fifth Schedule does impose a restriction on the Lessee not to cause any annoyance, nuisance or disturbance to the Lessor or other Lessees. In practical terms, however, and on the basis on what action has already been taken by the owner of the flat to try and reduce the effects of smoke drift, I’m not sure what more could be done in this regard – other than perhaps encouraging the owner to consider banning smoking in the property in respect of any future tenancy agreements and when the current tenant moves out. Perhaps the only possible hope is to seek the help of the local authority. My understanding is that local authorities do have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints of ‘statutory nuisance’ as set out in the Environmental Protection Act 1990. Complaints of smoke passing from one premises to another would usually be carried out by local Environmental Health Officers (EHOs) who would need to determine whether the problem constituted a ‘nuisance’ under the terms of the Act. However the EHO is, perhaps understandably, required to balance differing interests and to assess what is ‘reasonable’ in the circumstances and to determine whether the effect of the smoke is prejudicial to health. Equally the assessment of what constitutes a ‘nuisance’ must take into account the standards of an average person (rather than someone who is hypersensitive) as well as the duration, frequency and severity of the problem.’ [submitted April 2016]

Smoke Drift

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