Can dogs see smoke
First things first:
- In general, smoking is part of the contractual use the rental property, also on the balcony and terrace.
- When concluding the rental agreement, individually a smoking ban to be agreed. A pre-formulated clause in the rental agreement is not enough. A prospective tenant does not have to state whether he / she smokes without being asked.
- If the neighbor is severely impaired by smoking, he can over the command of the mutual consideration Obtain restrictions or require the smoker's landlord to intervene.
- When moving out, the general rules of also apply to the consequences of smoking Cosmetic repairs. Or in the case of substance damage, the Rules for Compensation. So they have to be eliminated or not depending on the situation.
Only smoke-free at home?
Most - and most effective - smoking bans in the apartment are not issued by the landlord, but by the (non-smoking) partner.
Smoking on the balcony or terrace
Many smokers also want to avoid the smell of smoke in their own four walls or protect their loved ones at home from the dangers of passive smoking. They prefer to treat themselves to their cigarettes on the balcony.
But what can the landlord or the neighbor ask for? In principle, smoking is also a part of it "contractual use" the rented apartment and the associated balcony or terrace. It is therefore permissible, as the Federal Court of Justice decided on June 28, 2006 (file number VIII ZR 124/05).
However, if the neighbor is significantly impaired, they can request that smoking be restricted. Then compromises have to be found with time regulations. This requires mutual consideration. The Federal Court of Justice confirmed this at the beginning of 2015 (file number V ZR 110/14).
What to watch out for with regard to smoking ...
... when concluding the rental agreement
Before signing the lease, landlords often want to know whether the Prospective tenant smoker is. Whether this is a permissible or an inadmissible question has been determined up to now not yet from the Federal Court of Justice decided. Of course, opinions differ. This is important because you can only lie to an inadmissible question without risking negative legal consequences.
Ultimately, it depends on whether the landlord's interest in knowing about your smoking behavior is rated higher than your right as a tenant to keep private things to yourself. In any case, you do not have to inform us whether you smoke.
The courts have not yet decided whether a smoking ban can be effectively agreed between the tenant and the landlord. Most of the time, however, it is like this:
The individual agreementThe fact that smoking is not allowed at all or only occasionally in the apartment or the common rooms is effective. If you violate this, this can ultimately lead to termination.
Ineffective however, there is a pre-formulated clause in the rental agreement that prohibits smoking in the apartment. You don't have to adhere to that.
... for complaints from neighbors
It often happens that the neighbors feel annoyed by smoking on the balcony. The smoke drifts onto the neighbour's balcony or through the open window into his apartment. On the other hand, the neighbor can partially demand an omission, see above.
The District Court of Düsseldorf has also confirmed the termination of a smoking tenant in a highly regarded decision because the neighbors were annoyed too much by smoking. The district court has confirmed the tenant's termination as effective in the next higher instance. Not because he smoked too much, but because he didn't ventilate the apartment sufficiently, so that the cigarette smoke drew into the hallway.
In addition, z. For example, chain smokers may be required to be more considerate if their neighbors are asthmatic or allergic and an aggravation is to be feared because of passive smoking.
If there is a construction defect that causes the smoke to draw unnecessarily strong to the neighbor, the neighbor may be able to contact his landlord Reduce rent. In a ruling by the Hamburg Regional Court in 2012 (file number 311 S 91/10), a tenant was granted a rent reduction because he could no longer ventilate the apartment due to the smoke from the neighboring balcony.
... when moving out
Most of the consequences of smoking can be avoided remove by paint and wallpaper. At least the consequences in the apartment. The smoking tenant is only obliged to do so in accordance with the general rules. If he is not obliged to carry out cosmetic repairs, he does not have to remove the nicotine traces either. The Federal Court of Justice also sees it that way (decision of June 28, 2006, file number VIII ZR 124/05).
Only if caused by excessive smoking Substance damage the apartment has occurred, which cannot be removed by cosmetic repairs, the smoking tenant can pay Compensation (judgment of the Federal Court of Justice of March 5, 2008, file number VIII ZR 37/07).
This is also possible if the tenant has a contractually agreed Smoking ban violated. But both are the big exception.
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