Vacation Apartments as Noise Pollution

For some years now, Berlin residents have been suffering from unruly and messy tourists staying in vacation apartments located in residential areas. On February 29, 2012, the BGH published a ruling (re VIII ZR 155/11) that attracted a lot of attention.


The tenants live in Berlin Mitte (central Berlin), also very popular with tourists. Their landlord rents out some apartments to tourists as vacation apartments. Since these “guests” made a lot of noise and made a mess of their house, the tenants reduced their rental payments by 20%. Due to the significant arrears in the rent, the landlord gave extraordinary notice to the tenants.

Since the tenants did not move out, the landlord filed a lawsuit for eviction. The tenants won their case at the Federal Court of Justice in Leipzig. The federal court held that the lower courts unreasonably exaggerated the requirements of a tenant to show and prove a material defect in the apartment (§536 BGB). The judges exceptionally considered, to the advantage of the landlord, that just renting an apartment out to tourists does not give the other tenants in the building any right to complain or to allege misuse. Real misuse would be a substantial violation of the rental contract. The court considered the fact that not all tourist guests are noisy and disturbing in such manner that goes beyond the normal use of tenants living their lives in the building. It is socially acceptable and to be tolerated when persons celebrate in their apartment or get wild and therefore somewhat loud. Such “disturbances” are considered socially acceptable and must be tolerated.

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