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