Potsdam Regional Court, 14 March 2014, Ref.: 1 S 31/13
As a result of social change, excessive smoking by a tenant is increasingly regarded as non-contractual use of the rented property by neighbours or the landlord.
The Düsseldorf Local Court (Düsseldorf Local Court, 31.07.2013, Ref.: 24 C 1355/13) has even accepted the heavy smoking of a tenant in an apartment building and the associated nuisance to other tenants as grounds for termination without notice.
Nevertheless, the prevailing opinion in case law and literature continues to regard the tenant's smoking as part of the contractual use of the rented flat.
The above-mentioned decision by the Potsdam Regional Court also concerned the smoking of a tenant. However, the opposing party in this legal dispute was not the landlord, but a neighbour of the smoker.
Introduction: Facts and complaint
This case concerns a legal dispute between tenants of an apartment block. The plaintiffs, non-smokers, feel disturbed by the rising cigarette smoke from the defendants, who are smokers and regularly use their balcony for smoking, in the use of their flat and balcony. While the plaintiffs claim that around 20 cigarettes a day are smoked on the balcony, the defendants state that they smoke a maximum of 12 cigarettes a day there. The plaintiffs applied to the local court for an order that smoking on the balcony at certain times, the opening of the bathroom window at night and the emptying of the ashtray at certain times should be prohibited. However, the local court dismissed the action, whereupon the plaintiffs appealed to the Potsdam Regional Court.
Regional court judgement: injunctive relief for smoking on the balcony
The Potsdam District Court upheld the decision of the local court and dismissed the plaintiffs' appeal. It argued that the plaintiffs were not entitled to injunctive relief with regard to smoking on the balcony pursuant to Sections 862, 858 BGB. Smoking on the balcony was not an interference with the plaintiffs' dominion, as the smoke did not prevent them from entering their balcony. Even an impairment of subjective well-being due to cigarette smoke does not constitute grounds for interference with possession. Since smoking in rented flats, unless otherwise agreed, is generally part of the contractual use, behaviour in accordance with the contract cannot be regarded as prohibited interference with possession.
Health hazards due to passive smoking
A claim for injunctive relief by the plaintiffs under Sections 823 and 1004 of the German Civil Code due to the threat of health hazards caused by the rising cigarette smoke was also rejected. The court found that there was no concrete evidence of a health hazard, as the height difference of around three metres between the balconies and the presence of a balcony roof would largely dissipate the rising smoke. Furthermore, there were no legal regulations restricting smoking on private balconies.
Further points of complaint: Opening the bathroom window and ashtray
The court also found that the plaintiffs had no claim with regard to the opening of the bathroom window at night. There was a lack of evidence that the defendants actually smoked in the bathroom at night and that the smoke penetrated into the plaintiffs' bedroom. The court also rejected the claim regarding the emptying of the ashtray. The plaintiffs were unable to conclusively demonstrate that stubbed-out cigarettes in the ashtray caused a significant odour nuisance.
Conclusion: judgement confirmed
The Potsdam Regional Court thus confirmed the judgement of the court of first instance and dismissed the plaintiffs' appeal. The plaintiffs are not entitled to injunctive relief, as neither interference with property nor health hazards could be sufficiently proven.
Source: Potsdam Regional Court
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