BGH: Detailed noise protocol does not have to be submitted
Children must not be constantly making noise in the apartment. Even if child noise is to be regarded as “socially adequate”, “the requirement of reasonable mutual consideration” applies, the Federal Court of Justice (BGH) in Karlsruhe decided in a decision published on Tuesday, September 12, 2017 (ref .: VIII ZR 226/16). If tenants in the house complain about repeated repeated noise from children and their parents, no detailed noise protocol has to be submitted as evidence of a rent reduction.
In this specific case, the Karlsruhe judges upheld a Berlin tenant's appeal against the non-admission. Since 2004 she has been a tenant in a three-room apartment in an eight-family house in Berlin-Tiergarten. When a family with two children not yet required to attend school moved into the apartment above them at the end of 2012, the calm was over.
The woman complained that the young children had caused massive noise for almost an hour to four hours since then, even during rest periods. They would stomp, jump, rumble, or scream for hours. If it were too much for the parents, they would also regularly scream to rest.
The noise pollution and the associated vibrations are so strong that the pots on the shelf moved. But the whole apartment was affected by the noise. Visitors would no longer stay with her because of the noise. Even a neighbor with hearing loss can hear the noise without a hearing aid.
The plaintiff reduced the rent by 50 percent due to the noise pollution and only paid it with reservations. In court, she now asked the landlady to return a good 9,000 euros of the rent, which was paid under reservation.
The Berlin Regional Court found that child noise must not be endured without limits. Here, however, the reasonable level has not yet been exceeded. It is part of normal development that children "walk" paths and communicate in "loud language". That the parents urge them to rest is evidence of consideration.
Small children are also not capable of differentiated verbal arguments, according to the district court. Therefore, it is quite normal and common for them to make themselves felt louder. The applicant's noise figures are also too imprecise. The appeal against the judgment was not allowed.
In its decision of August 22, 2017, the BGH ruled that another chamber of the district court had to deal with the case again. Even if child noise is considered socially adequate, neighbors would not have to be offered everything. The principle of reasonable mutual respect should apply.
Here, the regional court had not sufficiently investigated the noise pollution and thereby violated the applicant's right to be heard.
In the case of recurring impairments, it is also not necessary for tenants to submit a detailed noise protocol. A description of the time of day, how often and for how long the noise occurs is sufficient. The district court could have heard witnesses and checked the house's audibility. It must now make up for this.
The BGH had already decided on February 29, 2012 that tenants did not have to keep a “noise diary” due to constant noise (ref .: VIII ZR 155/11, JurAgentur report from the judgment day). Tenants would have to accept occasional celebrations or loud arguments in the neighboring apartment as “socially adequate”, but not constant noise and dirt. A description of the type, duration, frequency and times of day of the noise would then suffice for a rent reduction. The landlord could not request the submission of a “protocol”. fle / mwo