Smoking on the balcony

In the meantime, smoking has become an issue that creates many a strange legal drive. Regardless, it has long been argued that at least a ban on smoking on a balcony would restrict the smoker's personal rights. But here it seems to come to a change of stigmata.

Smoking in a private environment and thus on the balcony

Some smoking bans that have occurred in recent years are understandable. But not all of them - regardless of whether you are a smoker or a non-smoker. For a long time, the most intimate area of ​​a human being, namely his living space, was spared from this. Again and again, spectacular judgments were heard here when non-smoking fanatics even wanted to get smokers out of their homes.

So far disagreement with tendency per smoker in courts

This fraction could now be awarded a first partial success. For a long time a disagreement of the courts was more apparent when it came to the question of whether you could smoke on the balcony or terrace. Or whether, in contrast, it represents a restriction for the neighbor. In some cases this led to the balcony becoming a reason for rent reduction.

Some courts speak to tenants smoking and barbecuing on the balcony

In isolated cases, it was observed that courts actually recognized a restriction on non-smoking neighbors. First and foremost here is the hamburger dish. Here is this verdict not surprising, because in the opinion of the court of the Hanseatic city, the barbecue on the balcony would represent an unacceptable for neighbors.

BGH judgment seems to mark a change

The majority of courts confirmed that the smoking ban on the balcony would be equivalent to a restriction of personal development, that would violate the fundamental rights. Now, however, a ruling by the Federal Court of Justice from 2015 at least at first glance wiped out this point of view (BGH AZ: V ZR 110/14, 16.01.2015).

Agreement between tenant and lessor to third parties lapses

Even if an agreement has been reached between landlords and a smoking tenant that allows smoking on the balcony, this agreement must not adversely affect the rights of third parties. That would be in this case the non-smoking neighbor. However, according to the judgment, a claim for injunctive relief does not exist if it is an insignificant disturbance.

Insignificant for a reasonable man

When it is immaterial, the BGH has also ruled. However again to interpret typically stretchable. It was therefore immaterial, if an average, normally understanding person on the balcony of the disturbed neighbor feeling would judge that the smoke nuisance was indeed immaterial.

But what is a reasonable person?

But this automatically raises the question of how one could define an average, reasonable person. It is and remains subjective. Just as it does not belong anywhere in Germany for free development, to grill on the balcony. So there will be plenty of room for controversy over smoking on a balcony, especially after this BGH verdict.

Tips & Tricks

In the house journal you will find many more interesting articles and guides, which also deal with the legal situation on a balcony. For example, to calculate the square meter on the balcony for the rent to be assessed, when a jacuzzi, whirlpool, paddling pool or for children a pool on the balcony may be set up or not.

Video Board: Go Back To The Zoo - Smoking On The Balcony (audio only)