A tenant reports that tobacco smoke from the neighbouring balcony is disrupting their stay. They demand that you as the landlord impose a complete ban on smoking. The other party refers to their tenancy agreement. For the next decision these two opposing demands are still not sufficient. You need the concrete facts and an appropriate legal regulatory approach.
Do not make the contractual response the end of the examination
In judgment V ZR 110/14 the BGH made clear: a permission granted in relation to the landlord does not automatically exclude a disturbance of possession of the other tenant. § 862 BGB forms the statutory starting point for this. For the question of reasonableness the BGH applied the materiality standard from § 906 paragraph 1 sentence 1 by analogy. [BGH, BESITZ, MASSSTAB]
The judgment is not, conversely, a general authorisation for the landlord to dictate a complete balcony-smoking ban to every household by a short message. Which claims and declarations are appropriate in the concrete relationship is examined professionally on the basis of the contracts and the actual impairment.
Record impacts and usage interests concretely
Our editorial recommendation: request factual information about when and where smoke was actually noticed and which use was affected as a result. Own observation, third-party statement and suspected origin should remain distinguishable. The number of suspected cigarettes does not replace the description of the impact.
Also record the actual usage wishes of both parties. A conversation about specific time periods is different from the demand that the other person should simply never use the balcony. Initially it is about an understandable factual status, not about a health measurement carried out by you yourself.
Prepare the balancing legally and appropriately
The BGH emphasised mutual consideration. In cases of substantial impairment a usage regulation by time periods can serve the balance. However, the judgment did not lay down a universally applicable smoking-hours plan; it annulled the contested decision and remitted it for further determination. [BGH]
Therefore present the professional advisor with concrete observations and the existing contractual arrangements. Have clarified who can make which agreement and which further steps are possible if no understanding is reached. Your own provisional note of the conversation is not described as an already enforceable ban.
Fictitious case: Two actually desired evening uses
One party wishes regularly to use the balcony for dining after work. The other wishes to smoke there during the same time window. The landlady first compiles the concrete observations and usage wishes. She neither immediately promises a total ban nor does she dismiss the complaint solely by pointing to permitted smoking.
The parties, with suitable support, examine a concrete agreement. A proposal is recorded as a proposal; an agreement actually reached receives its own verifiable status. Whether it is legally sufficient and how to deal with a renewed impairment is clarified by professionals.
Keep open legal and health questions visible
Particular health objections belong in the individually appropriate professional assessment. No current medical all-clear is derived from the historical judgment. A rent reduction or termination is not confirmed by this procedural guidance either.
Your result is a conflict concretely prepared with recorded impacts, usage interests and a checked next regulatory step. A blanket contractual response would have obscured precisely these distinctions.