Is smoking in a rental property considered neglect?

må man ryge i en lejlighed?
må man ryge i en lejlighed?

steen larsen

Juridisk rådgiver

Udgivet den 15.06.2024

Interior maintenance

Smoking in a rental property undoubtedly increases the need for maintenance. the question of who should pay for the extra maintenance depends on who has the interior maintenance obligation. according to rental law, smoking is not always considered neglect but rather “normal use.” however, this depends on the rental agreement’s provisions regarding smoking. traces of smoking may fall under the term “wear and tear” in the Danish Rent Act § 187, subsection 1. according to this provision, the tenant must return the property in the same condition as at the start of the lease, except for deterioration due to wear and tear. if the tenant has the interior maintenance obligation, they must remove the traces of smoking. if the landlord has this obligation, it falls on the landlord to remove the traces of smoking when the tenant moves out.​

Agreement on a smoking ban

In the rental property smoking can be considered neglect under certain circumstances. if the rental agreement includes a smoking ban, the landlord can impose the additional costs of removing smoking traces on the tenant. a housing court ruling (GD 2023/36 B) involved a dispute where the rental agreement prohibited smoking, and the landlord had the burden of proof to show that the tenant had smoked. the court ruled that smoking in violation of the contract was neglect, but since the landlord could not prove this, the tenant was acquitted. landlords often want to prevent smoking in the rental property to protect the property or avoid maintenance disputes. a valid agreement on a smoking ban can be made, and the housing court has ruled that such an agreement is legal. however, it can be difficult to enforce the ban unless smoking is documented as harmful to the property or other tenants.

​Tenant’s neglect

Without an agreement on a smoking ban, the landlord can only claim compensation for additional costs of removing smoking traces if it is considered neglect. determining whether smoking is neglect is a case-by-case assessment, but heavy and long-term smoking can be argued as such. a ruling (U.2012.384V) regarding additional costs due to smoking showed that it is difficult to prove neglect. even with confirmed nicotine contamination, the tenant was acquitted as the smoking was not considered extraordinary, and the tenant had regularly maintained the property.

​Documenting smoking

It is important to document traces of smoking in the move-out report. if damage to walls and ceilings is due to smoking and this is not documented, the landlord cannot claim compensation for additional costs. therefore, the landlord should always ensure that all traces of smoking are noted upon move-out to hold the tenant responsible for any damages. by taking these precautions, landlords can better navigate the issue of smoking and neglect in rental properties and ensure their property remains in good condition.​​​​

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