Returning a “Smoked-in Apartment” to One’s Former Landlord

When smoking in your apartment, are you responsible for the tobacco stains from smoking when you return the apartment to the landlord? The BGH answered this question in its judgment of June 28, 2006 (re VIII ZR 124/05).

A tenant had rented an apartment and returned it in accordance with the contract as “besenrein or swept clean” – disregarding a layer of tar on the walls and wallpaper. The Federal Court of Justice held that the landlord has no grounds for damages from the tenant relating to the filth of the returned apartment. The tenant has not infringed the rental contract. Generally, the tenant is entitled to use the apartment inside the boundaries set out by law and the contract (§535 I 1 BGB).

Changes or deterioration of the dwelling due to the contractual use are not the responsibility of the tenant (§533 BGB). Since the parties made no specific agreement to keep the apartment free of smoke, the renter who smokes inside his four walls is using the dwelling as agreed – a place to live generally as a smoker likes. However, this rule is not applicable if the apartment has been excessively used. This could have been the case because of layers of tar on the walls and wallpaper after four years of living. The case law of LG Paderborn (NJW-RR 2000, 1110) will not be applicable. This regional court held that an apartment had then been excessively used because smoking in the apartment for a short period of six months resulted in the need for a significant renovation, i.e. new wallpaper and painting.

The court listened to an expert on the amount and scope of damages. This expert gave the opinion that mostly wallpapering and painting work was required. This is only corresponding the typical use of an apartment, which are to be taken care of during “beauty repairs”. Since the tenant only needed to return the apartment as clean as a broom could sweep it, it was not his concern. Further, the silicon seams at the windows and insulation rubber strips needed to be replaced, as the expert noted, but these repairs only reflect the usual wear and tear of a building. All these “damages” were the typical result of four years of just living in the dwelling.