Criminal Damage By Smoking

[Landlord2010]

Could smoking within private premises (dwelling house) amount to criminal damage. The dwelling was occupied by paying tenants who declared at the start of their tenancy that they were non-smokers - indeed, it was a requirement that they were so. However, the property, including furnishings etc., now smell of smoke; an obvious accumulation over the time of their tenancy (the full period of their tenancy was 12 months) and not just lingering as it might from a casual cigarette by a visitor, for instance. The tenants were quite obviously regular smokers, judging by the smell. Time and a great deal of cleaning and redecoration will be needed to remove all traces of smoke residue. Aside from the tenancy agreement issues, answers should be limited to the offence of criminal damage.

[sumo19]

They have broken their terms and conditions to which they agreed. There is no criminal damage here.

You may be able to claim from them.

[Sandy-Wroe]

Did they pay a deposit? It could be used to help pay for any cleaning.

[hc4361]

This could be interesting. Although you specified your tenants must be non-smokers at the start of the tenancy, did the agreement actually state that the tenants must not become smokers during the tenancy, or similarly, that smoking was strictly forbidden in the property?

In any case, for a successful criminal prosecution on this it would have to be proven that they intentionally or recklessly damaged your property, knowing that smoking inside the house would do so. They will argue that as they are smokers they did not know that smoking causes houses to stink - they cannot smell it themselves.

There has been successful prosecutions for criminal damage on less, but really I think you'd be wasting your time pursuing it.

[dh001]

By definition of the Criminal Damage Act, this could be crim dam. Damage is not defined in the act but it need not be permanent, visible or tangible if it affects the value or performance of the property. It would be for the court, using its common sense to decide whether this is crim dam.

However, this is not, or should not be a matter for the police to pursue.

[Landlord2010]

Thanks for the responses so far; some very interesting thoughts. However, just to add an interesting dimension; whilst there is no permanent, or lasting damage, quantifiable time and expense will be required to put matters right, which tends to support a potential offence of criminal damage. The reason for this logic is supported by the offence of damage caused by chalk when peace protesters wrote on a footpath. The court held that it was criminal and although not permanent a contractor had to be paid for his time and cleaning materials to remove the graffiti.

[boxtops]

My OH had a large part of his deposit retained when (unreasonably we thought) his landlords said they had to clean the flat after he left. Since he had cleaned up throughly before he left we were not very pleased, but it would have been a hard case to argue, so we paid up. alsoI had a flat which I let for 6 months and when I took it back, the tenants had left behind a huge amount of stuff in the loft which I had to arrange to take to the tip - I look the cost of that out of their deposit before I returned the balance. It would seem reasonable to me for you to cost out the cleaning you have to do to put the place back in order, and take it out of their deposit.

[Jakesb]

botox

[Jakesb]

My dad smokes he doesn't commit any crimes

[Jakesb]

botox is what I said not Botox

[dh001]

Landlord, like I say, this 'could' be criminal damage as per the legal definition but I would suggest one would have to be looking at reckless crim dam as opposed to intentional crim dam, which as hc4361 states would be a difficult to prove in this situation.

With regard to the protestors, this would have been intentional crim dam and rightly convicted of the offence, even though no permanent damage was caused.

Can i ask the reason for the question, have you had a dispute with the police regarding jurisdiction advocacy? (i.e. civil or criminal).

[Landlord2010]

Thanks again DH001. I have a property that is supposedly 'managed' (I use the term very loosely - don't get me started!) by a letting agent. Aside from their incompetence etc (subject of another issue re: contracts - doh! I've started...) I am weighing up options as to which direction to pursue regarding recompense from said tenants and agent or both; criminal or civil or both. Other half thinks we should just take it on the chin, go on holiday ,and let it lie... Aye right!

[dh001]

Ah ok thanks. I am afraid I can not give any assistance where you legally stand with the letting agents or the best way to pursue the matter but if you are unsuccessful on here perhaps you could try many of the excellent sites like http://landlord-forum.co.uk/

[Landlord2010]

For some reason, and I can't think why I didn't think of it earlier (possibly my age), I have landlords insurance with legal cover, and the tenant, by requirement of their tenancy, also had insurance. Maybe both insurance companies can pick the bones from my substantial complaint. Looking at the landlords forum just reminded me... maybe I do need a holiday... maybe I'm going senile.... PLEASE don't put me in a home!

[dh001]

Thats good, let us know what the legal advice is regarding this matter if you dont mind (if you can remember ha ha).

All the best.

[Landlord2010]

Having discussed matters with legal experts the opinion is as follows.

The tenants are in breach of the tenancy terms and conditions that were signed on taking occupancy. Specific clauses were highlighted and initialled by the tenants as having been read and understood, one of which concerned the issue of smoking within the property and the consequences of doing so. In short, there was, and still is, no ambiguity. Therefore, the experts believe there is a case to pursue, since the tenants may have falsley created a belief from the outset that they were non-smokers to secure tenancy, or that they have subsequently decided, by intention or neglect, to ignore their tenancy terms. However, from a criminal point of view, the experts are less precise. The likelihood of proving intent is not impossible, though still difficult, using the specific clauses as evidence. The likelihood of proving recklessness is somewhat easier given the same evidence. None of the experts wants to be brave enough to pursue a criminal case (possibly because it's in the too difficult tray, I suspect), but all have said it would be interesting to see how it would run through the system, given the current climate surrounding no-smoking enforcement in other areas; albeit this is not a public building.

So, their overall opinion is to pursue a breach of tenancy through the civil route because it's less ambiguous;
'Were they allowed to smoke inside the property'
'No!'
'Were they aware it was conditional'
'Yes, they signed to that effect'.

The matter is far from resolved because they can't decide how to make progress from our discussions. One is pondering over a fag and a cup of cold coffee, the others are debating whether it's a liquid lunch, or something from the local greasy spoon. These are experts, mind...!

[dh001]

Hi landlord. As you can see criminal damage does not have to be committed intentionally as the act includes that the offence can be committed 'recklessly'.

For your information, Stated Case Law has recently (2004) defined what recklessness is for the purpose of the Crim Dam Act. Recklessness defined as follows:-

A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to:

i) A circumstance when he is aware of a risk that it exists or will exist;

ii) A result when he/she is aware of a risk that it will occur;

And it is, in the circumstances known to him, unreasonable to take the risk.

[dh001]

There is nothing preventing you from reporting the facts to the police for a decision but dont be dissapointed if they refuse to pursue.

[Landlord2010]

Hi DH,
Thanks for your input, once again. Funnily enough, we discussed whether case law might decide for us, it seems their archives are in left-handed braille or at least their systems are steam powered, which might explain why they haven't come back to me on it yet, but it looks like you got to it first - well done!

I also had a chat with a DCI who's also a close neighbour who said, and I quote: "If that landed on my desk I'd be looking for Jeremy Beadle... Is there a body on the end of it?... how much forensics is there?... Is this a joke?"

I think that tells us all we need to know about our local force and their eagerness to pursue something unique and possibly a little different from the norm! He was a little perplexed when I pointed out it was unlikely they would be found wearing a mask and striped jumper... bless him!

[dh001]

Actually I should have said recklessness was defined by the House of Lords but because of the way the Criminal Damage Act is worded I am sure there will be loads of stated cases regarding what is and is not Crim Dam.

Its also worth noting that burden of proof required in crim law is higher than in civil law.

The police do have to filter out work due to the large volumes of reports (a lot of which is just nonsense). The fact that there are already specific civil laws and procedures in place to deal with this common situation will mean an almost guaranteed negative response.

(You never know, your issue may make a 2010 Stated Case LOL)