The facts of the case:
According to the house rules, tenants were not allowed to barbecue on their balcony in an apartment building. The house rules were also included in the lease. Despite multiple warnings from the landlord, the tenants persistently continued this behavior. Ultimately, the landlord terminated the tenants' lease without notice and filed a lawsuit for eviction.
The decision:
The Regional Court in Essen ruled correctly (case reference: 10 S 438/01). The termination due to the ongoing breach of contract through barbecuing effectively ended the tenancy, so that the landlord's action for eviction is justified. This is because the landlord has the right to extraordinary termination if the tenant makes use of the rented property in a manner that is contrary to the contract, the landlord has warned the tenant, the tenant continues the objectionable use regardless of this, and this behavior significantly violates the rights of the landlord.
Not every minor violation of an effectively agreed set of house rules justifies a termination, but if, despite a warning, violations of the house rules that are likely to cause lasting disturbance to the peace of the building continue, the matter looks different.
The District Court of Essen did not make any distinction here as to whether the tenant used a charcoal grill or an electric grill, because in either case the smoke and odor that arises is fundamentally suitable for disturbing the other tenants. Therefore, it is legitimate for the landlord to impose a ban on barbecues in order to avoid such potential conflicts between tenants.
In the specific case, it was clear that the number of barbecue activities was so high that the peace of the building was permanently disturbed. For example, fellow tenants had specifically complained about the tenant's inconsiderate behavior and stated that they felt disturbed.
Practical note:
First of all, it should be noted that there is no uniform regulation as to how often a tenant is allowed to barbecue and also how long, whether on the balcony or in a garden. The following examples are intended to show how far the decisions of individual courts differ.
It should always be kept in mind that a lawsuit can often simply be an attempt to negotiate a workable solution between landlord and tenant that has previously failed due to the hardened positions of the parties without the help of a court.
The District Court of Düsseldorf (Az. 25 T 435/90) and the District Court of Hamburg-Mitte (Az 40 C 229/1972) have ruled that barbecuing on a balcony is not allowed with a charcoal grill.
The Stuttgart District Court (case no. 10 T 359/96) ruled that barbecuing is allowed three times for two hours each time during the year.
According to a judgment of the Regional Court of Bonn in 1997 (case reference: 6 C 545/96), barbecuing on the balcony is allowed once a month from April to September, provided that the other residents are notified 48 hours in advance.
The Bavarian Higher Regional Court (Ref. 2 Z BR 6/99) requires that the grill in a residential complex be placed in the furthest corner of the garden, 25 meters away from the neighbors.
According to the Higher Regional Court of Oldenburg (case no. 13 U 53/02), barbecues may be held until 10 p.m. as a matter of principle. Up to four times a year, it may even be "socially acceptable" to barbecue until midnight.
This is in contrast to a decision by the Aachen Regional Court (AZ: 6 S 2/02), according to which barbecuing is allowed twice a month between 5:00 p.m. and 10:30 p.m.
The District Court of Munich I (Az. 15 S 22735/03) ruled that the grill must be placed as far away as possible from the neighboring apartment so that the smoke cannot enter the neighbor's apartment.
According to a ruling by the Schöneberg District Court (Az. 3 C 14/07), the neighbors of a youth center have to endure barbecues until 9:00 p.m. 25 times a year for two hours at a time.
The Westerstede District Court (Az. 22 C 614/09(II) ) ruled as follows: The neighbor of an apartment building, who lives nine meters away from his fixed barbecue in the garden, can be prohibited from barbecuing more often than twice a month and limited to ten times a year if smoke and odors from barbecuing directly enter the bedroom of the neighboring house. No prior notice that a barbecue is to be held is required.
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.