The issue of smoking in a rented apartment is divisive. While smokers desire the freedom to do whatever they like in their own homes, many nonsmokers claim that secondhand smoke is a health hazard that may infringe on their right to undisturbed enjoyment of the property.

The proportion of smokers in the population has been falling continuously for several decades. As a consequence, there are often arguments about smoking in a rented apartment and among the members of house communities. These often end in court.

Tenants should know what they are allowed to do. And landlords should find out what rights they themselves and what rights their tenants have.

Smoking in a rented apartment is generally allowed

Banning smoking in a rented apartment is considered by legal experts to be a massive interference with the tenant’s right of use under the rental agreement. Therefore, restrictive or prohibitive clauses in so-called form rental agreements are not permitted. It is also irrelevant whether the tenant smokes cigarettes, cigars or shisha pipes or, bought for example at https://e-liquidkaufen.com, consumes the increasingly popular e-cigarette.

However, form clauses are permitted which prohibit smoking in rooms and areas that are shared by all residents (e.g. the hallway, the stairwell, the laundry and bicycle cellar, a communal cellar or the attic).

Tenants are allowed to consume cigarettes

With a ruling on normal smoking in rented apartments, the Federal Court of Justice (BGH) already strengthened the rights of tenants vis-à-vis landlords in 2006 (file number VIII ZR 124-05). In the grounds of the judgment at the time, it is stated that smoking in a rented apartment can only be prohibited by a contractually stipulated, individual agreement between the landlord and the tenant.

The landlord has no right to compensation. This means that the smoking tenant does not have to wallpaper or paint the apartment at the end of the lease in order to remove nicotine deposits.

If the neighbors are harassed, smokers face dismissal

Even excessive smoking in a rented apartment cannot be forbidden to the tenant by the landlord. The situation is different, however, if the tenant does not take appropriate measures such as regular ventilation or emptying the existing ashtrays to ensure that the smoke from the cigarettes does not get into the stairwell and other residents or users of the building are massively annoyed as a result.

There is also a ruling by the highest court that the Federal Court of Justice published in February 2015 under file number VIII ZR 186/14. In the opinion of the judges, the tenant’s behavior that disrupts the peace of the house, not his smoking, can be the reason for the landlord to terminate the contract without notice.

Controversy zone balcony – smoking can be temporarily or completely prohibited

While a tenant cannot be forbidden to smoke in the rented apartment if he does not bother anyone with the smoke, it is different with smoking on the balcony. Under the file number V ZR 110/14, the Federal Court of Justice ruled in 2015 that it was unreasonable for non-smoking roommates to expose themselves to the smoke of a smoking tenant and in this way to be exposed to a health hazard

According to current case law, smoking in a rented apartment as such is initially not suitable to justify a claim for damages on the part of the landlord. It is a different matter if a smoker renovates the rented apartment to the prescribed extent after the end of the tenancy, but this does not eliminate the deterioration in the condition of the apartment due to the deposition of nicotine.

In this case, according to a judgment of the Federal Court of Justice from 2008 (file number VIII ZR 37/07), the landlord can be entitled to compensation.

Strengthening tenants and landlords when it comes to smoking in a rented apartment

Anyone confronted with this issue as a tenant or landlord should contact a lawyer specializing in tenancy law. He can advise both the smoking tenant and the landlord and, if necessary, represent both in court. The previous highest judgments of the Federal Court of Justice aim at two things.

On the one hand, they want to strengthen the tenant’s rights and preserve his or her right to personal development. On the other hand, the landlord should also be given means to protect his home from excessive wear and tear and damage from the nicotine consumption of a tenant.

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