Proprietor v Adolfs (2014) H&FLR 2014-36

Proprietor of a house in L. Street  v Friedhelm Adolfs (2014) H&FLR 2014-36

Düsseldorf Regional Court

26 June 2014

Coram: Ralf J.

Appearing for the Plaintiff: Prof. Dr. Carmen Griesel (of Griesel & Kollegen)
Appearing for the Defendant: Mr Martin Lauppe-Assmann (of Lauppe & Hassenkamp)

Catchwords: Germany – tobacco – smoking – landlord and tenant – nuisance – eviction.

Facts: The defendant had been a caretaker at a block of flats from 1973 to 2009. He was provided with an apartment as part of his remuneration. After retiring in 2009 he rented the flat under a standard contract.

The defendant was and is a smoker, consuming about 15 cigarettes a day. It was admitted (but later denied) that he had allowed cigarette smoke to escape into the stairwell and other parts of the building rather than allowing it to escape through open windows. It was found that his landlord had repeatedly warned him verbally and in writing about the escaping odour from 2012.

The plaintiff sought the defendant’s eviction on the basis that cigarette smoke was passing into the stairwell of the apartment building and was allegedly a health hazard for other residents. The eviction was upheld: Proprietor v Adolfs (Düsseldorf District Court, Rundel J, 31 July 2013). The defendant appealed.

Held: Dismissing the appeal, that –

1. The fact that a tenant smokes in their apartment is not a breach of their tenancy contract.

Case No. VIII ZR 37/07 (Federal Court of Germany, 5 March 2008), followed.

2. However, other tenants in the building were not to be expected to endure “unacceptable and intolerable odour”.

3. The defendant was in breach of his tenancy agreement by failing to take adequate steps to prevent cigarette smoke from entering the common areas of the building by not airing his home and not emptying his numerous ashtrays. This provided a sufficient basis to terminate his tenancy.

Case No. 6 S 313/06 (Braunschweig Regional Court, 10 April 2007), considered.

4. In view of the defendant’s long residence in the apartment, however, he was given until 31 December 2014.

Judgment

The Court’s judgment is available here.  An appeal to the Federal Court of Germany is contemplated

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Official Veterinarian v Unidentified Defendants (2013) H&FLR 2014-21

Augsburg District Court

c. 9 January 2013

Coram: Wieser M.

Appearing for the Prosecutor: Not known

Appearing for the Defendants: Not known

Catchwords: Germany – Bavaria – criminal law – dog – overfeeding – obesity – cruelty to animals

Facts: The defendants were a couple aged 69 and 71 years.  In October 2010 they came into possession of a Pekinese dog.  It was alleged that they overfed her such that her weight increased to 22 kilograms (48.4 pounds).  The standard weight of a Pekinese is around 6 kilograms (13.2 pounds).  Advice from a veterinarian as to proper feeding had been rejected.

In April 2012 the dog’s condition was reported to authorities by one of their neighbours.  The dog was found to be suffering two torn cruciate ligaments, extreme shortness of breath and had an inaudible heartbeat.  The animal was unable to walk and instead moved by dragging itself.  Destruction of the animal was recommended*.  The owners were charged with breaches of the Animal Welfare Act.  They responded that the dog was overweight when they acquired it and in particular denied feeding it chocolate.

Held: The charges were upheld.  A penalty of several thousand Euros was imposed and the offenders were ordered to perform 80 hours of community service**.

Judgment

No written judgment is available.  The report was compiled based on reports in the Augsburger Allgemeine on 3 August 2012 and 9 January 2013, the Welt of 8 January 2013, the Süddeutsche Zeitung of 24 August 2012 and the Sächsischen Zeitung of 2 August 2012.  Translations by Google.

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* The dog was ultimately given to another owner and at last report weighed 12 kilograms.

** An appeal against the penalty was abandoned.