Tenancy law: Smoking on the balcony – is that allowed? – style

One’s addiction and joy, the other’s suffering: the cigarette. The haze doesn’t stay on the smoker’s balcony. Depending on the weather and wind direction, sometimes one person next door has the smell with them, sometimes the other. But the neighbors don’t have to put up with the smoke, at least not all the time. This is what the Federal Court of Justice (BGH) decided in 2015 in a much-noticed judgment: Smokers can therefore be obliged to only come out for a cigarette at certain times (Ref. V ZR 110/14).

The argument took place in a house in Brandenburg, where the tenants smoked downstairs, while those upstairs no longer wanted to tolerate the smell. The problem: fundamental rights collided between the apartments. One has the right to his cigarette of his own volition, the other the right to a home without being “significantly affected” by the smoke. In order to balance the two, smoking could certainly be restricted “according to the principle of mutual consideration”, the judges decided – and brought a timetable for smoking into play.

Overall, over the years, non-smokers seem to have been more and more right in court. In 1999, for example, the district court in Bonn rejected all claims against smoking members of the household (Az. 6 C 510/98)the district court of Hamburg already decided in 2012 that tenants of surrounding apartments can certainly be entitled to a rent reduction if one party in the house often smokes on the balcony (Az. 311 S 92/10). And the Frankfurt Regional Court finally decided in 2014 that an owner can even be completely banned from smoking on their own balcony – if the apartment has a second balcony where the smoke affects the other residents of the house less (Ref. 2-09 S 71/13). “Smoking as an expression of one’s personality is becoming less and less accepted in society. That’s why it is more likely that the courts will become stricter in the future,” says Rolf Bosse, chairman of the tenants’ association in Hamburg.

Different rules apply in the apartment

So if there is always a stink outside because of the stench – then maybe inside? Well, many smokers also find cold smoke in the room pretty awful. But still better than meeting up with those next door in court.

And indeed: in the apartment, the legal situation is a little different than before. Neighbors or landlords hardly have any legal basis to get involved. Addiction is also part of the free development of personality, which is protected by the Basic Law. Clauses in the rental agreement that forbid smoking in the apartment from the outset are therefore invalid, for example.

Basically, in most cases smoking indoors is also part of the contractual use of the apartment, as the BGH decided in another judgment (Ref. VIII ZR 124/05). The owner of an apartment in Baden-Württemberg claimed contamination by nicotine residues and demanded damages from the tenants, ultimately unsuccessfully: According to the judges, there was no “significant need for renovation” in the apartment. Later, the same Senate restricted: “Excessive” smokers can certainly be obliged to pay damages in the apartment, but the BGH set the hurdles for this high: This is only possible if the damage can no longer be repaired solely by cosmetic repairs such as painting or wallpapering permit (Ref. VIII ZR 37/07). Because that was not the case in the dispute from North Rhine-Westphalia, the landlord got nothing here either.

However, the BGH has also clearly stated that smoking indoors is not allowed to be completely unrestrained (Ref. VIII ZR 186/14). If a smoker refuses to take “simple and reasonable measures” such as airing the room and thus provokes an odor nuisance for the neighbors in the stairwell, for example, this can disturb the peace in the house. In addition, the principle of consideration applies. Depending on the individual case, such behavior can justify ordinary or even immediate termination.

In extreme cases, this can mean that people smoke outside again. In the street.