The main holiday season is coming to an end this year. Many of us have traveled to faraway countries and come back with new impressions of the countries and their people. We have also taken a liking to new and sometimes exotic cuisines and their spices. The daily TV cooking shows show that we are increasingly reaching for the wooden spoon again. So it's no wonder that when we come back from vacation, we stand in the kitchen again at the beginning of the dreary season and get the spices we got to know in the holiday country and use them joyfully. But what do the neighbors think when the hallway and stairwell are also filled with these smells?
Are there limits? What is allowed? A look at legal regulations and an admittedly older decision vividly illustrates the problem.
§ 536, 906 BGB
536 BGB regulates the tenant's rent reduction vis-à-vis the owner. "If the leased property has a defect at the time it is handed over to the lessee that renders it unsuitable for the contractual use, or if such a defect arises during the lease term, the lessee is exempt from paying the rent for the period during which the suitability is canceled. For the period during which the suitability is reduced, he shall only have to pay a reasonably reduced rent. An insignificant reduction in suitability shall not be taken into consideration. According to this, if the reduction in habitability is not insignificant, the tenant can reasonably reduce the rent.
If neighboring homeowners are facing each other, according to § 906 BGB "the owner of a property the supply of gases, vapors, odors, smoke, soot, heat, noise, vibrations and similar effects emanating from another property, provided that the effect does not impair or only insignificantly impairs the use of his property. As a rule, there is only a negligible impairment if the effects determined and assessed in accordance with these provisions do not exceed the limit or guideline values set out in laws or ordinances.
Both provisions have the "materiality threshold" in common. Only if this is exceeded can the tenant reduce the rent "appropriately" in the rental relationship.
"Significant" and "reasonable"
Since "significant" and "reasonable" are assessed differently by each party in the respective situation, these legal formulations are indeterminate and open to interpretation, as they are vague and ambiguous and their objective meaning is not immediately apparent. Ultimately, this lack of clarity in content is clarified by the courts for the specific individual case.
Concrete provability
In a case decided by the Essen District Court in 1999, the court ruled: "Contrary to the opinion of the Local Court, it is not certain, after obtaining the expert opinion of expert P, that there is an impairment of use due to odors to such an extent that it justifies a 30% reduction." The expert did not provide any information on specific impairments because no kitchen odors were escaping at the time of his site inspection. He merely stated in theory that the structural conditions in the house could lead to significant odor nuisances.
House-hunting: During the appointment to prepare the expert opinion, no meals were cooked. The expert was therefore unable to detect any odors. Thus, the question of whether the odors were "significant" and to what extent the rent reduction would be "reasonable" could simply not be answered. The purely theoretical possibility of the odor nuisance due to the structural conditions was not sufficient.
Witnesses and subjective perception
Since it was not possible to obtain an objective expert opinion, the witnesses were questioned. The grounds for the judgment come to the conclusion: "But even after hearing the witnesses, it has not been proven that the use [...] is impaired beyond what is reasonable. Although witnesses M, T. and H. Q. and X stated that they feel disturbed by cooking smells coming from the kitchen exhaust at various times of the day while in the house and garden, all witnesses stated that the smells were very intense and of various kinds. Witness T. Q. added that he sometimes perceived odors at an intensity that he normally only associates with commercial kitchens. However, in the opinion of the board, this is not sufficient to justify a reduction. It may be that due to the structural conditions, cooking odors occur with greater intensity and are perceived by the residents as a nuisance. According to the results of the evidence, however, it cannot be determined that this is a consistently significant nuisance. Rather, according to the testimony, it is clear that it is, in any case, a cooking smell, albeit one that is extreme in the way it is perceived, that arises when food is prepared. The fact that neighbors cook at different times and according to their own tastes is, however, to be tolerated in principle, even if it does not necessarily correspond to the perceptions of others. Not least to be taken into account is the fact that, with regard to the intensity of the odors as stated by the witnesses, subjective perceptions vary greatly depending on one's own mental image. Certain situations or a different pace of life can lead to cooking smells being perceived as extremely disturbing. This is confirmed, for example, by the fact that the witness H. Q. stated that she was often overwhelmed by food smells when drinking coffee on the terrace and the defendant herself stated that she felt disturbed when she got up late in the morning and already perceived cooking smells. In this case, it is entirely understandable that the neighbors in question feel disturbed in a different way due to their specific situation than if they were preparing lunch themselves, for example. However, these circumstances alone do not prove that the smells actually exceed the level of perception of an average person, which is the point of reference.
Extreme odor nuisance as a breach of contract
Despite the difficulties in proving the case, the Bonn District Court ruled in 2014 that the termination of a tenancy without notice due to serious odor nuisance, including on the basis of an expert opinion from an "odor expert", was justified due to a breach of contract. However, a written warning must have been issued beforehand.
Conclusion:
The smells of food that occur in households are to be tolerated as socially acceptable in principle. The different subjective perceptions of scent or smell contribute to this.
Those who fail to show mutual consideration should initially be kindly reminded of this. Perhaps you can also learn to enjoy the new exotic spices by inviting yourself.
For landlords, in addition to the difficult burden of proof, a prior written warning is essential.
Only a continuous significant nuisance that goes far beyond the socially acceptable level justifies the tenant's right to a rent reduction of regularly 4 to 7% and the landlord's right to terminate the lease after an unsuccessful warning.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.