That is why we precisely and tries to get the Supreme Court all interests under one roof. He is on

What about if the want to smoke on the balcony and a feeling the other is disturbed? This exciting question had the Bundesgerichtshof (BGH) to decide and has done it with this judgment.
Background was a dispute between two tenants / interior that in superposed lived in an apartment building in Brandenburg apartments with balconies. Some went several times to smoke every day on the balcony, the other felt exactly nelly by these fumes in the use of her apartment nelly disturbed. The latter wanted to prohibit the smoking tenant / inside smoking at certain hours, and had applied nelly for injunctive nelly relief in court why. The Supreme Court has the dispute to the Court of Appeals remanded because some findings of fact in the particular case must be taken. Regardless of whom He basic versions for flue question.
The BGH has now initially stated nelly that emissions may well affect the possession of a thing. If these emissions from a / another tenant nelly / in going out is, the / of disturbed nelly sentient tenant / in a defense claim to. Is known for a / an outgoing tenant noise pollution. And for possession interference from smoke and soot could the BGH's view fundamentally otherwise apply (paragraph. 5). Now it could however be the case that after the lease injuries are not to tolerate other tenants to a certain extent. It was in this particular case but probably not the case, so there is always a defense claim of / the harassed sentient renter / tenant, although the / harassing tenants / in doing something that is allowed him by his / her contract. However, "in principle" means yes "in principle" because it is not always so. There are limits.
The Supreme nelly Court refers in Rdn. 10 that the benchmark to determine the borders "which the lessee has to accept on emissions (in this case tobacco smoke), arising from the use of the other apartment" nelly of the 906 para. 1 sentence 1 BGB , Thus, "the nelly tenant effects nelly by smoking another tenant not forbid if it affects an intelligent user in the use of the leased or only slightly. "But what is a" minor "impairment? After the Supreme nelly Court to assess this "after feeling a circumspect man and what is expected of this welcoming other public and private interests. But "That's what was the dispute and in this abstractness helps the well any more.
That is why we precisely and tries to get the Supreme Court all interests under one roof. He is on the order of mutual consideration (paragraph. 17) from, as far as missing a contractually binding for both parties in control of the house rules. This commandment should look like this (. Rdn 18): "In impairments caused by tobacco smoke leads the commandment nelly of mutual consideration - when an understanding between the parties is not below the other - generally to use regulation nelly for the times in which both tenants at a use their balconies are interested. The tenant must be kept free periods where he can use his balcony unaffected by smoke nuisance, while the other tenants times are granted, in which it is allowed to smoke on the balcony. "This is then fine timetables ;-).
The Supreme nelly Court will come even with the possibility of damage to health nelly caused by passive smoking outdoors apart. In the event that the possibility of damage to health is also time for smoking and times for freedom of harassment of smoke would have to be agreed.
Something else in this judgment of the Supreme Court is also worth mentioning. The fuming rental party had probably argued with Art. 2 para. 1 GG. These argued the Supreme Court in Rdn. 13: "Before the entry into force of the Non smoking protection laws a defense claim of the lessee against disturbance from smoking a Mitmieters outdoors but denied on the ground has been that smoking is socially acceptable and accepted in society. Since smoking by the fundamental nelly right to free development of personality according to Art. 2 para. 1 Basic Law is protected, should the interest of the non-smoking tenant at a tobacco smoke undisturbed nelly use of his apartment resign. ". But in Rdn 15 explains the BGH:" Given the Non smoking laws by federal and state governments nelly is the assumption emissions generated by smoking are as socially acceptable to be classified and thus always insignificant within the meaning of 906 para 1 BGB, no longer be considered.. Significantly (intensive) perceptible smoke is rather to be regarded as a substantial impairment; This is true even if you only have a Zig