Unfortunately, the home is not legally protected against tobacco smoke nuisance from neighbours, so that impaired tenants or owners are forced to legally enforce their right to their own physical integrity in the home, which can be time-consuming and expensive.
Pro Rauchfrei advises on the options and generally recommends taking out legal expenses insurance, which also covers rental and residential property. It is important that this is done before a specific dispute arises.
As there are various, not always accurate, statements circulating on the internet about smoking on balconies and in flats and how to protect against it we will pick out one example and correct some of the claims. We sent the following message to the generali insurance company at the beginning of April, but they have not yet (as of 9 April) responded, so the partially incorrect statements can still be found under the link mentioned below.
Dear Sir or Madam
We were recently made aware of an article on your website about the nuisance of neighbourhood smoke. It can be accessed via the link https://www.generali.de/journal/sommer-auf-balkonien-wann-und-wie-rauchen-grillen-erlaubt-ist
This article, which is incorrect in key passages, unfortunately raises unfounded hopes among non-smokers who are plagued by smoke that they can simply have property managers (or landlords) prohibit smoking parties from smoking. We list the incorrect statements below and recommend that you have the article corrected by your legal department.
- Incorrect: “In the judgement ref. no. V ZR 110/14, the Federal Court of Justice obliged a Berlin resident to smoke-free times in 2017. Accordingly, she is no longer allowed to light a cigarette on the balcony of her rented flat between 8 pm and 6 am.”
Correct: In the judgement you mentioned, the Federal Court of Justice upheld the appeal of a non-smoking couple from Premnitz/Brandenburg against a judgement by the Potsdam Regional Court in 2015 and referred the case back to the Regional Court.
The 2017 proceedings, on the other hand, took place before the Berlin-Lichtenberg district court and ended with a settlement that included a regulation on non-smoking and smoking times. The press reported on it. It was also less about smoking in the defendant’s flat than on her balcony. - Incorrect: “Smoking on the balcony of a condominium is only permitted as long as no one complains. If the smoker disturbs neighbours, the owner must look for another place to light his cigarette. Otherwise, he is committing an administrative offence.”
Correct: An administrative offence is a violation of a legal regulation. Smoking in flats or on balconies is not regulated by law, neither for owner-occupied flats nor for rented flats. Smoking there is therefore not an offence under any circumstances. Owners can send the smoking party a cease-and-desist letter if they feel they are being disturbed by neighbourhood smoke. Even then, it will not be possible to prohibit smokers from smoking in their residential property, but either to offer a time regulation or suggest another place to smoke (e.g. a second balcony or, if necessary, a more distant spot on a terrace, another room in a flat, etc.). If no declaration of discontinuance is issued, non-smokers can try to enforce their claim by reaching an agreement with an arbitration board or by means of a settlement or judgement in court. A fine (or, alternatively, imprisonment) may be imposed as a penalty for violations of the agreement, settlement or judgement. - Misleading: “As a tenant, excessive smoking on the balcony can even have serious consequences. If neighbours are bothered by excessive smoking and the tenant does not stop smoking, they risk having their flat terminated. The current legal situation is generally on the side of tenants who feel harassed and states that you don’t have to put up with neighbours who smoke excessively.”
It is questionable whether excessive smoking by tenants has ever led to the termination of their tenancy. In the well-known case of Düsseldorf smoker Friedhelm Adolfs, who made numerous headlines in the press, the termination was ultimately unsuccessful. The smoker, who has since died, was able to stay in his flat.
Tenants have the option of reducing their rent due to heavy smoke nuisance but will have to reckon with being sued by the landlord. The court will then decide whether the landlord is entitled to reduce the rent. Tenants, just like owners, can also demand that the smoking party cease and desist. If the matter goes to court and a significant impairment can be substantiated, non-smoking and smoking times are usually agreed or stipulated. In its 2015 ruling, the Federal Court of Justice requires that the impairment must be significant and, in this case, proposes a usage regulation based on time periods: https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=71044&pos=0&anz=1
In our experience, the current legal situation is not fundamentally in favour of tenants who feel harassed. It is not uncommon for harassed tenants to fail with their lawsuits because the judges did not consider the significant impairment caused by tobacco smoke to be proven.
One important piece of information for landlords should also be added: For new leases, they can negotiate a ban on smoking in the flat and on terraces/balconies with future tenants in the form of an individual supplementary agreement. However, a standard tenancy agreement may not contain a prefabricated smoking ban clause. Pro Rauchfrei is available for further information.
Please forward our e-mail to the relevant department. We will be happy to receive confirmation from you that the contents have been changed.